1L: Property

Front 1

Who has the right to exclude? (2)

Back 1

1. Property owner (owner in fee simple absolute)
2. tenant

Front 2

What was Intel Corp. v. Hamidi about?

Back 2

Intel sues to stop D from sending e-mails to its employees – injunction for trespass to chattels. Supreme Court found for D. Ct concludes that you need to show actual harm to recover in the case of trespass to chattels (to computer system, equipment), even when you’re just looking for an injunction.

Front 3

What should we understand from Intel Corp. v. Hamidi?

Back 3

In this case, the emails had no effect on the operation of the computer system. Since the tort of trespass to chattels reqs actual harm, no recovery. Distinction btw the protection afforded real property and the protection afforded personal property. Note: with trespass to chattels, you can use reasonable force to protect your possession, but prob not something we want to encourage.

Front 4

What did the Hamidi dissent say?

Back 4

Dissent argues that Intel should get the injunction because: (1) Intel suffered economic loss; (2) Intel’s computer system was impaired to a degree; (3) D is trespassing by using Intel’s resources against its wishes

Front 5

When can a court can impose punitive damages to a trespasser?

Back 5

(1) Punitive damages deter future wrongdoing; (2) Reprehensible trespassing must be punished; (3) Punitive damages take the profit out of an illegal activity

Front 6

What is Jacque v. Steenberg Homes, Inc about?

Back 6

Steenberg had sought permission from the Jacques to transport a mobile home across their land and they had refused. Jury awarded $1 in nominal and $100K in punitive, but the court set aside the $100K because weren’t accompanying compensatory damages.

Front 7

What did the court rule in Jacque v. Steenberg?

Back 7

Supreme Court reversed and remanded to reinstate the $100K – said that w/intentional tort action of trespass, compensatory aren’t necessary to be awarded punitive damages. Big diff is that the actual harm isn’t in the damage done to the land, but instead to the individual’s right to exclude others from his/her property.

Front 8

What are the policies behind why we protect right to exclude from physical property? (5)

Back 8

(1) Utilitarian perspective – property spurs production; (2) Efficiency; (3) Human dignity/autonomy rationale that focuses on a property as an extension of one’s personhood; (4) Natural law/John Locke theory – private property to the extent it embodies an individual’s past efforts in a commodity, the individual deserves to have ownership rights over that commodity. [Jacques ex: Ct enforced punitive damages without actual harm b/c trespass was intentional – about the Ps dignity.] (5) Property is a resource for serving human needs, more instrumentalist.

Front 9

What is the difference between Trespass to chattels vs trespass to land?

Back 9

Principle Problem: (1) US has a history of elevating land/land ownership, so trespass to land (unlike trespass to chattles) doesn’t require a showing of actual harm. This is b/c we were basically a land-based society. It was wealth and what people lived off of. (2) we don’t want people taking the law into their own hands

Front 10

Is a property owner's right absolute?

Back 10

A property owner’s right to exclude is not absolute; an owner must sometimes allow others onto his property for emergencies, etc. Property owner’s rights must give way to weightier access needs, such as union organizers, public health workers, legal services, etc.

Front 11

What was New Jersey v. Shack about?

Back 11

Government workers trespass onto private farmland to reach migrant workers to provide services. Court rules that property right to exclude does not include right to bar government services to workers, so there was no trespass. Ct based its decision on theory of human needs/instrumentalist view of private property ownership – can’t bar access to medical care. Migrant workers were in need of these services and law facilitates that end. Basically rights v access paradigm – came down on the side of access.

Front 12

What is the point of NJ v. Shack?

Back 12

1. Classic prop case b/c req the ct to balance the prop owner’s right to exclude others on his prop with the free speech concerns of the social worker and legal aid attorney. The ct didn’t rely on any constitutional provision or state statute. Very common law kind of approach.

Front 13

How do most states handle free speech v. property rights issues?

Back 13

i. The Constitution protects free speech from government interference, though doesn’t compel states to permit free speech in privately owned shopping centers. States are free to determine the boundaries of free speech rights and private property rights. Most states/cts hold that state constitutions don’t protect free speech from actions of private parties like owners of shopping centers.

Front 14

Which case showcases the minority view on state/ free speech/property rights?

Back 14

ii. New Jersey Coalition v. J.M.B. Realty Corp: Right of access v right to exclude. An anti-war group was leafleting in a shopping mall. If this was govt owned property, have to permit the leafleting b/c would be state action. These weren’t state actions, but some states have still found that shopping centers can’t prohibit the leafleting b/c the balance of right v access is such that free speech still wins. This is a minority view. In applying the Schmid test, court determines that leafletters do have the right to leaflet in a public place, subject to reasonable time/place/manner restrictions.

Front 15

What is the Schmid test?

Back 15

The Schmid Test:
(a) Normal use of property: Shopping – more public use even if private property. Projecting a community image. Regional centers have displaced downtown shopping centers as gathering point for citizens;
(b) Extent & nature of the public’s invitation to use it: Not quite private property b/c mammoth size and this is how people shop now, not downtown anymore. Public invitation to use the property is very broad – hang out; (c) Purpose of the expressional activity in relation to both its private and public use: Ps leafleting is consonant with the use of the property. Exercised for centuries in downtown business centers, and this is similar.

Front 16

Principal Problem 2: Dr who performs abortions and anti-abortion activists leafleting in front of the main entrance of her office – not obstructing entrance. Dr asked owners of the complex to expel them – do they have a right to be there? [What is the big question?]

Back 16

BIG QUESTION: Is the property owner being hurt more by allowing the leafletters, or are the leafletters being hurt more by not being allowed to leaflet? This is all about the right to exclude v access balance.

Front 17

What is the Answer to PrincProb 2?

Back 17

(1) Dr. Land – says have the right to exclude. Distinguished from NJ Coalition v JMB b/c the town center was equivalent to community gathering place – not like Drs office/complex – not a public functioning property. Also distinguishable from State v Schack b/c patients are going to office voluntarily, so the information isn’t necessary like it was to the migrant workers. Migrant workers are isolated, language barrier, didn’t have medical care. The field worker in Shack is trying to get them medical care, not pass judgment on the care they have decided to get. (2) Protestors – says have right to access. Argue it’s a public area where anyone is invited to come and carouse the businesses. Protestors conducted activities in public part of complex, not in private office. Try to analogize to State v Schack b/c leafletters are attempting to further inform patients about the medical stuff. (3) Kwall says most cts would come down in favor of the landowner.

Front 18

What is a lease?

Back 18

A lease is a possessory interest in land, which creates rights for the tenant and duties for the landlord. If a leasehold is terminated or the right as a leaseholder is diminished, you have the right to have the law enforce your property interest.

Front 19

What are the Rights for lease holders?

Back 19

1. Right to exclude
2. Right to transfer
3. Right to be present on that property
4. Landlord cannot terminate without reason

Front 20

What is a license?

Back 20

A license merely authorizes the licensee to use land in the possession of another. Because there is no possessory interest, there are fewer rights. If landowner wants to evict licensee, usually no recourse.

Front 21

What are the Rights for license holders?

Back 21

1. The right to be present on that property
2. Landlord can terminate without reason, though may incur liability (Restatement § 519, comment b)

Front 22

What are the Factors to balance in determining lease vs. license? (6)

Back 22

1. Language - indicates the intention of the parties
2. Whether agreement delineates a specific location - if yes, then lease
3. Transferability - more freedom indicates a lease. If an agreement says it is assignable, it is a lease. Makes sense b/c a lease is a possessory interest in property – and that means you should be able to assign it, give it away, etc.
--> Cts may reach diff conclusions based on a non-assignment clause, but the basic premise is that transfer abilities make it a lease.
4. Exclusive physical possession - if yes, then lease
5. Rent - if yes, then lease; lesser payment indicates license
--> But payment by the person to the LL doesn’t necessarily mean rent. (ex: $$ was paid for trademark right and right to operate out of the store => not a lease.)
6. Specified duration - if yes, then lease

Front 23

How was the Dr's space in Beckettstill a lease when the space could be moved around the store?

Back 23

But in Beckett, Dr’s space could be moved around the store. How is it still a lease? P. 42 – cite Losson v Blodgett – ok if parties acted upon it as relating to particular premises. Res of Properties 2 section 1.1 = LL/tenant relationship can be created in this kind of circumstance as along as the tenant is being moved in a predetermined area.

Front 24

What was Beckett v. City of Paris Dry Goods Co about?

Back 24

Optical dept in large store – Dr violated provision of agreement that said he was to deposit receipts with the store’s cashier. If it was a lease, he can’t get kicked out for that. Ct held that the agreement was a lease because the parties termed it as a lease, one party paid “rent,” it had a 3-year term. There was a non-assignment clause (indicating license) but ct said this was still a lease. So dr can recover for lost profits and moving expenses.

Front 25

What was Wenner v. Dayton-Hudson Corp about?

Back 25

Dept stores allowing retailers to operate out of some depts. in the store. City thought these agreements were leases, so levied a tax against the corp (1% of gross income on all persons engaged in leasing property). But the ct held that the agreement was a license because the parties termed it a license, space was not delineated, agreement is not transferable, no exclusive possession.

Front 26

Principal Problem 3: Resort owns apt building and converted to condo – sells time-share memberships (each member can occupy one of the apts for one week – not one in partic). Members can permit others to use it, transfer all rights under membership with consent, and may bequeath membership without consent. State Dept is authorized to regulate companies that lease 5+ parcels – are these leases or licenses? Define Lease/License & consequnece of each.

Back 26

A lease is a possessory, property interest in property that gives a tenant exclusive right over property. As opposed to a license, which is granting use of the land without exclusive right over property. Discuss consequences of each

Front 27

Princ Problm 3: What are the six factors, as applied to the problem, in determining a lease v. license?

Back 27

1. Language – don’t have the language of the agreement. If we did, could look for lease or license terms.
2. Specific Location –
3. Rent - The members pay the $ ahead of time for a specific amt of time, is a rent. Rent suggests lease.
4. Transferability – Rule from Wenner – members could transfer their membership. Suggests this is a lease.
5. Exclusivity of phys possession – members have exclusive rights to their unit, won’t be sharing it with another family, etc. Suggests this is a lease.
6. Specified duration

Front 28

PP3: Explain:
(1) Specific Location
(2) Specfic Duration

Back 28

Specific Location – Resort would argue that they’re not renting a specific space. State Dept relies on Beckett who could have moved around the store at any point and it was a lease. Cts are split on this, but using Res of Properties 2 section 1.1 = LL/tenant relationship can be created in this kind of circumstance as long as the tenant is being moved in a predetermined area.

--> Specified duration – licenses exist only as long as licensor wants to exist. Leases are for set time limit. Each time share is for some week, but that’s not the duration. The duration of the membership isn’t specified. Rule = if duration is specified, suggests it is a lease. That is ambiguous here – if you can bequeath it, suggests that maybe it lasts indefinitely? We don’t know.

Front 29

What is the policy being asserted in PrincProb 3?

Back 29

State Dept is trying to regulate companies that are leasing. From a policy perspective, we probably want them to be regulated. In other problems, look to who is the big fish, etc

Front 30

What is the prevailing law regarding LL and tenants’ covenants?

Back 30

The prevailing law is that LL and tenants’ covenants respectively are independent – tenant’s have a duty to pay rent and it is dependent on the LL’s duty to furnish habitable premises.

Front 31

Since a lease is now an exchange of responsibilities, what is a landlord responsible for providing? (5)

Back 31

A Landlord must:
i.Provide tenant with legal right to possession
ii. Not to interfere with tenant’s physical possession
iii. Make possession available to tenant
iv. Comply with express covenants in the lease
v. Also may have to comply with certain implied duties.

Front 32

What are the 2 implied covenants, duties, and promises between LL and tenants?

Back 32

1. Warranty of habitability
2. Warranty of suitability

Front 33

What does the Warrant of Habitability entail?

Back 33

Every landlord-tenant relationship includes a warranty of habitability, where the landlord promises to keep the premises and vital facilities livable for tenants.

Front 34

When assessing the Warrant of Habitabilty, what (3) things do we look at?

Back 34

Look to:
a. Custom and usage
b. Who can best make repairs
c. Intent of parties and language of contract

Front 35

What are some violations of the warranty of habitability? (5)

Back 35

a. Lack of heat
b. Lack of water
c. Lack of bathroom facilities
d. Malfunctioning sewage system
e. Building code violations

Front 36

What does the Warranty of suitability say?

Back 36

Warranty of suitability says: Property must be suitable for the purpose that it was meant for. (Applies to commercial uses.)

Front 37

What model of interpretation are courts moving towards re: Warranty of Suitability?

Back 37

Courts are moving away from a model of the warranty that’s implied in law (b/c the only thing implied in law is substandard housing – Marini) to one that is more applied in contract (what did the parties intend?).

Front 38

What is Davidow v. Inwood about?

Back 38

Dr leased commercial space for 5 yrs from P, P was to provide space, repairs, utilities, security. Premises infested with rats, no cleaning, no hot water, sometimes no elect. Dr left 14 mo’s before end of lease and P sued for unpaid rent. Dr claimed P breached implied warranty of suitability, but P claimed didn’t apply to commercial building.

Front 39

What did the court hold in Davidow v. Inwood?

Back 39

Ct held that implied warranty of suitability is extended to commercial tenants. They are dependent covenants. (Majority of courts recognize this right.)

Front 40

What policy underlies the warranty of habitability?

Back 40

The policies that support the implied warranty of habitability in the beginning/residential, was focus was on making the lives of tenants better, equalizing the disparity of bargaining power btw tenants and LLs, and intention. But these same policies don’t always translate to a commercial situation. However, small businesses can’t be expected to know more about his space than in residential space. Relies on LL’s better knowledge and abilities to repair.

Front 41

What does Restatement § 5.5 say about habitability?

Back 41

Restatement § 5.5 says tenant can obtain a remedy only if LL fails to fulfill an obligation which makes the leased premises unsuitable for the use contemplated.

Front 42

What is Marini v. Ireland about?

Back 42

Groundbreaking NJ case, where the lease had no express covenant to repair a toilet and the issue was whether there was an implied covenant to repair. Tenant wanted to pay for toilet and deduct from rent. Still living in apt. The court found an implied covenant to repair/implied warranty of habitability (said they are the same here) – said that the parties intended it. Allowed tenant to fix broken toilet and offset the cost against the rent.

Front 43

What does Marini v. Ireland say is the scope of the Warranty of Habitability?

Back 43

Scope of implied warranty of habitability? Ct says that LL has agreed to repaid damage to vital facilities caused by ordinary wear and tear during said term.

Front 44

What is the policy underlying Marini v. Ireland?

Back 44

Policy: Ineq of bargaining power and the need for protection, LL has bulk of the knowledge of property and what might be wrong.

Front 45

What is the case Wade v. Jobe about? What does the court rule?

Back 45

Tenant had lease and no hot water and sewage was everywhere. Told LL but LL would just do quick fixes – poured sewage on sidewalk. City eventually closed down building and tenant had to move out. LL sued for unpaid rent and tenant counterclaimed based on implied warranty of habitability. Trial ct found for LL b/c no implied warr of hab in Utah at the time. Higher ct now says there is and remanded it to apply new implied warranty and see if LL breached.

Front 46

What does Wade v. Jobe say is the scope of the new implied warranty of habit?

Back 46

Bare living requirements only – has to be fit for human occupation. LL has to have reasonable time to repair.

Front 47

Hypo: House with 2 ½ baths and one bathroom is out. Is there an implied breach?

Back 47

Under Marini and Wade, no implied warranty breach. Under Restatement, implied obligation to fulfill suitability would say LL has to keep all baths in working order.

Front 48

What is the relationship btwn housing codes and scope of warranty?

Back 48

Code violation isn’t necessary to est breach but can help. Substantial compliance with codes will serve as evidence of LL fulfilling duty.

Front 49

Hypo: Have apt in complex. Janitorial strike in building. Janitorial company is not controlled by the LL. Garbage is accumulating and smelling and gross. Should this situation be a violation of the implied warranty of habitability?

Back 49

a. Older case in NY extended warranty to cover situations outside of the LL control. (1979) But that case pushes the boundaries. Traditional position is the opposite.
b. Trad position = if something is outside LL control, LL is not liable
c. Restatement § 5.2 and 5.4 = in accord with traditional approach.

Front 50

What was Knight v. Hallsthammar about?

Back 50

Where tenants refused to pay rent until conditions were fixed; landlord has to fix immediately, not within “reasonable” time.

Front 51

Is the warranty of habitability waivable?

Back 51

The warranty of Habitability is not waivable.

Front 52

What is Knight v. Hallsthammar about? What did the court hold?

Back 52

If the warranty of habitability should be waivable: Knight bought an apt building - sent out a letter on rent increases. Tenants sent a letter saying they wouldn’t pay rent until issues were fixed (wall cracks, peeling paint, water leaks, heating, elec problems, rodents). All existed before Ps bought. When tenants stopped paying rent, evictions. Tenants claimed that P breached implied warranty of habitability by not repairing the problems they complained about. Trial ct said tenant can’t rely on implied warr of habit if they knew about the issues when the moved in or continued to live there, b/c were just getting what they knew they were paying for. This ct held that tenants lack of knowl of defects is not a preq to LL breach of implied warranty of habit. Not waivable in residential situations and LL doesn’t need to be granted reas time to repair.

Front 53

What is the policy underlying Knight v. Hallsthammar?

Back 53

Tough issue from a policy perspective – b/c don’t want LL’s to be able to have slum apts, but what if its all tenant can afford? Why can’t they have the freedom to rent some premises? If the LL is forced to make improvements, then have to raise the rent and tenant may not be able to afford it.

Front 54

What is the "reasonable time" issue?

Back 54

Once the LL is notified that there is a breach, the LL is in breach. B/c otherwise mutual dependence would make no sense. Tenant has the duty to pay the rent, and once they don’t pay the rent, they’re in breach.

i. Note: Jobe v Wade reached a diff conclusion on this issue - says LL does get reasonable time (Ct would have to determine what is reasonable).

Front 55

What two things can you say in support of the Warranty of habitability being waivable?

Back 55

1. Restatement § 5.6 allows for waiver of warranty except when unconscionable or against public policy.
2. Contract view of property, allowing for parties to bargain for conditions. Knight dissent: the contract model dictates that parties can live wherever they want to, even if apartment is not habitable.

Front 56

Are there any remedies available to LL/tenant relationships?

Back 56

(1) LL/tenants leases now viewed as contracts. Contractual remedies are available. This opens the door for tenants for more creativity in remedies, for things to improve their circumstances in ways that had not been possible when leaseholds were viewed just as conveyences to land. (2) Constructive eviction

Front 57

What are the three types of contract remedies?

Back 57

(1) Repair and deduct (2) Rent abatement and (3) Escrows

Front 58

Explain why LL’s might have about contractual Repair and Deduct remedies?

Back 58

The Repair and deduct – sometimes statutory. Can’t choose who the tenant chooses to make the repairs, may not shop around for the best deal. Some statutes say that the repairs can’t exceed a percentage of the lease, the balance of the lease, or one month’s rent. But problem is what if something essential is broken that costs more than one month’s rent? Can say remedy is only available twice in a 12-month period (Knight).

a. Restatement § 11.2 uses balance of the lease as a limit– defaults must be elim at cost that doesn’t exceed the balance of the lease

Front 59

What is Rent Abatement?

Back 59

Rent abatement – during the period that the LL is in breach, should get some rebate in your rent. How do you calculate that rebate? Issues arise when you are getting what you expect – poor accomodations for cheap rents – and therefore normal measure of contract damages don’t work (b/c no diff btw expectation and value of what they got).

Front 60

What are the (3) formulas for rent abatement?

Back 60

The three formulas for rent abatement are:
a. Rent reserved – Fair rental value of defective premises.
--> This wouldn’t be good for Knight b/c the rent reserved was = to the fair market value of the defective apt, b/c they moved in knowing that the apt was defective and paid the rent.
b. Fair rental value of the premises as warranted (without defects) – Fair rental value of the premises with defects.
--> This would work for Knight. The dissent said that is crazy b/c they knew what they were getting in to.
c. Percentage reduction = percentage by which tenant’s use and enjoyment of the premises has been reduced by the uninhabitable conditions.
--> Broad discretion and subjective judgment for the court, but other approaches aren’t that precise either. (Wade v Jobe)

Front 61

Explain Constructive Eviction.

Back 61

Constructive Eviction: Sometimes the acts or omissions of the LL have the effect of constructively evicting the tenant, even if LL doesn’t physically prevent tenant from occupying premises. Ex – failure to provide water or heat. If a ct finds that tenant has been constructively evicted, lease is terminated and tenant owes no rent for period following termination.

Front 62

If a person is constructively evicted, what 2 things must he do?

Back 62

a. Tenant must leave the premises within reasonable time after LL’s objectionable act or omission.
b. Problem if tenant has nowhere else to go. Also, if leaves and loses, may have to pay two rents. Rarely used doctrine.

Front 63

Explain Escrow.

Back 63

Escrow = a bank account into which a tenant deposits withheld rent, which he gives the LL when the LL corrected uninhabitable conditions in the property. Usually administered by a third party.

Front 64

Principal Problem 3: a Family has 3 yr lease on luxury estate for 3K per month, included swimming pool. Pool heating system broke and would cost $5400 to repair. LL refuses to repair, claiming its an oblig of the tenant. Malfunction wasn’t family’s fault. Explain what happens if: 1) leave the pool unrepaired but only pay $2400 per month (FMV of prop without the pool). Which rent abatement calculation applies? (discuss all 3)

Back 64

Of the three rent abatement calculations applies to this problem?
1. Not percentage reduction b/c the ct knows the fair market value of the defect.
2. Not fair rental value as warranted – fair rental value of defective premises (although it would be the same numbers).
3. Instead, use rent reserved $3000 – fair market value of defective premises $2400 = $600.
--> B/c this isn’t substandard housing, the rent they pay represents the value of the premises as warranted. In contrast, in Knight v Hals, the rent reserved WAS the worth of the defective property. Therefore it was $500 - $500 = 0 so we couldn’t use rent reserved equation. Had to use a diff equation, like the fair rental value without defect – fair rental value with defect, which would be more like $700 - $500 = $200. --> Note: Make the presumption that whatever the rent you’re paying is for housing that is NOT substandard and without defects is the fair market value of the property.

Front 65

Principal Problem 3: a Family has 3 yr lease on luxury estate for 3K per month, included swimming pool. Pool heating system broke and would cost $5400 to repair. LL refuses to repair, claiming its an oblig of the tenant. Malfunction wasn’t family’s fault. Explain what happens if: 2) they repair the pool themselves for $5400 but then reduce their rent by this amt.

Back 65

Option 2: Marini v Ireland = repair and deduct example. But in that case, it was about a commode which was vital to the apt and the LL would argue the pool is not a vital facility. But Marini also looked to the INTENT of the parties – and party here intended to use the pool – suitability issue. As for the remedy, rent is $3000 and they are saying that repair will cost $5400. We would have to tell them to be prepared not to recover everything b/c many jurisdictions have statutes saying that can’t be more than one month’s rent or the balance of the lease.

Front 66

What does the law do re: retaliatory eviction?

Back 66

retaliatory eviction – precludes the LL from evicting a tenant once the tenant has told on the LL about violating housing codes

Front 67

What is the policy behind the laws against retalitory eviction?

Back 67

From a policy perspective, once the lease is up, usually nothing to prevent LL from not renewing the lease. But the law in that area is grey – the extent to which LL is allowed to not renew b/c tenant told on LL

Front 68

How do most courts and states deal w/ retalitory eviction?

Back 68

Some state statutes preclude discrim in terms of LL agreeing to lease apt to certain tenants, and sometimes the nature of the discrim being prohibited isn’t always explicit. Cts deal with this differently. In some cases (NY), LL is allowed to discrim if statute doesn’t explicitly eliminate. In other cases, the ct interprets the statute to be illustrative, not exclusive.

Front 69

What is Kramarsky v Stahl about? What did the Ct hold?

Back 69

Black divorced woman was refused an apt, brought for alleged unlawful discrim against her b/c of her race, sex and marital status. Apt said no – discrim against her b/c she was an attorney and was an undesirable tenant (too knowledgable). Ct said that b/c “profession” wasn’t explicitly in statute prohibiting LL discrim, it isn’t included so LL can discrim on this basis.

Front 70

What could be your counter-arguement in Kramarsky v Stahl?

Back 70

If you were her attorney, you could argue that LL is not letting you lease this apt b/c thinks you’re going to start trouble. Stretch the retaliatory eviction doctrine to say this is a preemptive retaliatory conviction.

Front 71

What is Marina Point v Wolfson about?

Back 71

A couple moved into an apt complex. The lease they signed had a clause that said no minors could live there without the LL written permission. At the time, they didn’t have any kids. Complex altered its policy to ultimately exclude all kids. The couple had a child while living there, and continued to sign the yr lease with the clause about kids but didn’t inform the LL about the kid. Complex refused to renew their lease and brought unlawful detainer action. The family argued that the LL’s policy of discrim against families with kids violated both statutory law and the constitution. LL argued that the statute in question doesn’t list families with children as one of the protected classes.

Front 72

What is the Ct's holding in Marina Point ?

Back 72

The ct said that is unreasonable – statute was meant to prohibit arbitrary acts of discrimination and even though children weren’t listed, still said that they were covered. Categories are illustrative rather than exhaustive.

Front 73

What is US v Starrett City about?

Back 73

Ds owned and ran largest housing development in the country – 5881 units. US Dept of Housing and Urban Development subsidizes monthly mortgage interest payments. When the development was being built, the neighborhood was afraid that subsidized housing would result in an overwhelmingly minority development. The developer assured the neighborhood that they were creating a racially integrated community. D sought to maintain racial distribution of 64% white, 22% African American and 8% Hispanic through a tenanting procedure - when an apt opened up, depending upon the race of the tenant leaving, an applicant w/ a similar race is notified.

Front 74

Did Starrett City violate the Fair Housing Act?

Back 74

Ct held that it did bc it gave preferences to white tenants (b/c of tipping pt argument, arguing that it was violating the statute in the spirit of the statute).

Front 75

Based on Starret City / Title 7, when may a quota be ok?

Back 75

a. Its temporary and there’s a defined goal (not what was going on here, according to the court)
b. There is evidence of past discrimination with this housing development – societal discrimination isn’t enough (none here)
c. MAYBE if it favors minorities – but that’s not what going on here with this ceiling quotas.

Front 76

Based on Starret City, is the Title 7 analysis useful to apply to a Title 8 case?

Back 76

a. Yes, similar discrimination issues. But could critique the analysis b/c contexts are different – won’t be “white flight” in employment cases whereas there will be in the housing market. Tipping point phenomenon doesn’t apply to the employment context.

Front 77

In Starret City, how did the Cts read the statute?

Back 77

Ct does take a literal reading of the statute – wasn’t inclined to go beyond the four corners – but if you look at the legislative history, the drafters thought that if you prohibit discrimination, you will get integration. This is also a case of how you deal with statute interpretation. This court felt that there was no need to go beyond statute.

Front 78

Principal Problem 4: LL said all new leases executed only with those who can demonstrate that monthly income is more than 3x monthly rent and that this income is earned, not from investments, welfare or spousal support. We argue these are invalid reqs. Why?

Back 78

(1) 3x the monthly rent requirement has less of an arbitrary basis than the earned income requirement.
(2) Economic discrimination (which Unruh Act does not explicitly prohibit)
(3) Starrett City could favor either LL or tenant here depending on who you want to focus on. The part of Starrett that only looks at language of the statute will help the LL. Words of the statute did not say economic discrimination. But, on the other hand, what about impact discrimination? FHA prohibits affirmative acts of discrimination, but also makes it clear that its appropriate to interpret FHA to also outlaw discrim practices that have a disproportionate impact on racial/gender minorities. Here it can be argued that this impacts racial minorities and women, esp the earned income requirement.
--> Note: in real life, the LL dropped the earned income req and so the ct ruled in favor of LL. This ct felt that it served a legitimate purpose.

Front 79

What if she were in California (Marina Point)?

Back 79

In Cali, you can’t discriminate against any class arbitrarily. Could prob prove that the earned income req is more arbitrary.

Front 80

What is the The Unruh Civil Rights Act?

Back 80

The Unruh Civil Rights Act is a piece of California legislation that specifically outlaws discrimination based on age, sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.
--> This law applies to all businesses, including but not limited to hotels and motel, restaurants, theaters, hospitals, barber and beauty shops, housing accommodations, and retail establishments.

Front 81

When a Landlord leases to T1, what two options does T1 have in terms of T2?

Back 81

T1 can sublease to T2 OR assign to T2

Front 82

When a LL enters into relationship with T1, what are the 2 Bases of Liability that are created?

Back 82

((1) Privity of contract and 2) Privity of estate

Front 83

What is Privity of contract?

Back 83

Privity of contract = Relationship btw LL and contractor (tenant)

Front 84

What is Privity of estate?

Back 84

Privity of estate = Relationship btw LL and who holds the estate

Front 85

What happens if a T1 assigned her leasehold to T2 assignee?
Which type of privity does T2 now have ?

Back 85

The assignee steps into the shoes of the T1 and becomes liable to the LL on those contractual duties.
--> T2 is in privity of estate with LL, and T2 is bound by all the obligations under the lease.

Front 86

Assignments: what are 3 consequences
(characteristics of assignments) if an agreement btw T1 and T2 is viewed as an assignment?

Back 86

(1) Privity of K btw LL and T1 remains intact. That’s why T1 is always liable to the LL as a surety (if LL can’t find T2). Only way privity of K is shattered is if LL agrees to absolve T1 of K liability.

(2) LL and T2 come into privity of estate with one another. That relationship enables LL to hold T2 responsible for burdens of the leasehold, and T2 can get benefits of the leasehold from the LL. Mutual benefits and burdens.

(3) If T2 reassigns the prop to a T3, T2 is totally out of the picture. Only basis of liab T2 ever had was based on privity of estate.

Front 87

When can T2 still be liable even when if T2 reassigns the prop to a T3? (2 exceptions)

Back 87

(a) If T2 expressly assumes contractual liability (almost never happens – no reason to do that. As a practical matter, T2 is bound by any covenant that touches/concerns the lease so no reason for her to go further and become liable).

(b) T2 could also still be liable (Juilliard) if assignment is colorable/fraudulent.

Front 88

What arrangement btwn T1 and T2 would create no impact on T1s relationship with LL?

Back 88

a sublease

Front 89

Why does a sublease have no impact on T1s relationship with LL?

Back 89

The sublease creates an indep LL/tenant relationship btw T1 and S that mirrors the relationship that LL has with T1. But the relationships are separate.

Front 90

What are the types of privity btwn T1, S, and LL?

Back 90

T1 and S have priv of K and priv of estate. But LL still has priv of K and priv of estate with T1, NOT S.

Front 91

What can the LL do if sublessee is doing something on property that LL has forbidden sublessor to do? Like smoking cigarettes?

Back 91

Privity of estate is not required in equity - so LL can have equitable remedies only (ex: sue and get an injunction for smoking on the premises).

Front 92

Can a LL evict a sublessee?

Back 92

No. However, even though LL doesn’t have any contractual or privity reltnshp with sublessee, if sublessor isn’t giving LL the rent, LL can evict sublessor (which, in effect, evicts sublessee).

Front 93

What if S says he wants to expressly assume the oblig of the headlease?

Back 93

If so, he voluntarily puts himself in priv of K with LL. But he doesn’t have to do that – that’s indep, contractual obligation that he has entered into.

Front 94

What was Julliard v American Woolen about?

Back 94

Is an assignee who has reassigned the lease liable for the payment of rent during unexpired term? Woolen argues that once they reassigned the lease to the Rio company, they’re out of the picture. That’s correct, and its what the court concludes. This case reaffirms traditional rule of law that upon reassignment, the assignee is out of the picture unless the assignment was colorable, which it wasn’t.

Front 95

What was the majority rule in Julliard v American Woolen?

Back 95

Majority rule: When an assignee doesn’t expressly assume to pay rent stipulated in the original lease, he is liable only for the rent that accrues during his privity of estate.

Front 96

What was Abernathy v Adous about?
--> What was the main conflict?

Back 96

--> Service station – lease for ten years and T1 executed “sublease agreement” with Quran for him to operate it for 5 yrs etc (lease payment was full T1 rent + $500 per month, Quran made payments to T1 who paid owners (Abernathys), Adous added as “subtenant”). T1 failed to pay the owners, and owners filed unlawful detainer against T1 and Adous – they refused the rent directly from Adous. Adous sued for specific performance and owners notified T1 and Adous they were terminating lease, but Adous remained on property.
--> If Adous was sublessee, had to go. If assignee, had privity of estate with owners and therefore should stay since he was paing rent. Ct held this was a sublease.

Front 97

From Abernathy, what are the Five Factors used to determine Assignment v Sublease?

Back 97

(1) Language of the agreement, indicating the parties’ intentions – kept saying sublease
(2) Direction of payment – went to sublessor instead of LL – this indicates sublease. If you’re assigned the premises, then you would pay to LL.
(3) Possib of repossession by sublessor GPI (“right of reentry”) – this indicates sublease b/c sublessor and sublessee have indep relationship.
(4) Amt of rent was the same – indicates assignment
(5) Property was transferred for the remainder of the term – its as though Adous is stepping into the shoes of T1. Indicates assignment

Front 98

In Abernathy, when the Ct looked at the equity issue, did they find that forfeiture was unfair? (answer + 2 reasons why)

Back 98

No. (1) Ct says he has no privity of estate or K with owners, so to allow equity to stop forfeiture would create a relationship that they never desired and never existed.

(2) Very label driven – Adous should have known – not unaware.

Front 99

What did the dissents argue in Abernathy?

Back 99

Robbins focused on equity, but Roaf said that Adous was an assignee. Right of reentry was available only in the event of default, so was irrelevant to determination of whether it was assignment or sublease. In general, said majority’s factor based analysis was applied incorrectly. Said that factors show it was an assignment.

Front 100

e. Principal Problem 5: T1 leases apt from LL for $800 per month for 2 yrs. Six months later – Alyssa gets it – agrees to pay T1 $900 per month for rest of term. She mailed it to T1. LL tells her he hasn’t gotten the rent for 3 months so she owes him $2400. T1 is missing. She wants to move out and not pay the $2400, but LL says she has to stay for balance of the term or pay damages if she leaves. What relationship does Alyssa want the ct to find that she has?

Back 100

Alyssa wants a court to find that she is a sublessee b/c she was not in privity of contract with LL, and that T1 was – so he owes the money. Even though a sublessor can get kicked out, she doesn’t care b/c she wants to leave. If the ct rules she is an assignee she would have to pay the $2400 to the LL and for the rest of the term.

Front 101

What is Alyssa actually?

Back 101

Whether or not you use factors or factors/equity, she comes out as a sublessee. Although there is evidence that she was assignee (duration of the term) and there was no right of reentry, the factors just barely come out on her side.

Front 102

What facts can you point to to prove that Alyssa is a sublessee? (4)

Back 102

She had no privity of K with the LL so she never promised to pay the LL. She had no discussions, dealings with LL. So can’t impose a duty on her she never agreed to enter into. She also paid the money and met her obligations.

Front 103

What would you argue if you were representing the LL?

Back 103

He would say the fault lies with the tenants – he will say Alyssa was negligent by not entering into agreement directly with the LL.

Front 104

What should Alyssa have argued?

Back 104

Alyssa should have insisted that LL was party to agreement and that payments went to LL. She was paying a premium to Terry (extra $100), so why didn’t she insist that Terry terminate lease with LL and she give LL the $900?

Front 105

Re: Tennant's Breach, what was the Traditional rule in terms of the LL's duty to mitigate damages?

Back 105

Traditional rule was that LL didn’t have duty to mitigate damages when tenant breached – wasn’t forced by law to find a replacement

Front 106

What modern doctrine is in line with traditional view – it doesn’t require LL to mitigate damages?

Back 106

Restatement § 12.1

Front 107

What view are the the majority of jurisdictions now leaning towards?

Back 107

The view that LLs are required to mitigate damages upon a tenant’s breach.

Front 108

What (5) questions are raised when assessing the parameters of modern law (requiring LL to mitigate damages)?

Back 108

1. What is the standard? What does the LL have to do? Go out and rent the property to another tenant? Are LL’s damages reduced if doesn’t do that?
2. Who has the burden of showing that LL mitigated?
3. Can this duty be waived?
4. Does it make a diff whether we’re talking about commercial or residential property?
5. How does it work in terms of collecting damages?

Front 109

What is Reid v Mutual of Omaha Insurance about?

Back 109

Mutual had a five year lease for office space with the Reids. Rent was $1,100 per month. A new tenant moved next door (also owned by the Reids) and was loud. Mutual complained and felt that Reids didn’t respond adequately so 1 ½ yrs after their 5 year lease began, Mutual vacated the premises, claiming constructive eviction. The Reids remodeled the premises and leased them to the neighbor at a comparable rate. But less than a yr later new tenant vacated. Reids filed suit against Mutual claiming breach of lease and asking for the monthly rent for the 3 ½ yrs left on the lease.

Front 110

What did the cts rule in Reid v Mutual of Omaha Insurance?

Back 110

Ct held that Mutual did breach the lease, that Reid’s didn’t terminate the lease when they relet, and that Reids had duty to mitigate (and they did)

Front 111

What did Mutual argue? What did the Cts say?

Back 111

Mutual argued that they don’t owe anything b/c since the Reids had rented out the property to someone else, they accepted the surrender by releting. Ct says no b/c where the LL has the oblig to mitigate damages, how are they supposed to do that without releting the property?

Front 112

What was the Ct's reasoning in Mutual (2)?

Back 112

a. Ct said LL does have to mitigate – accepted modern view – practical and talked about contract damages

b. According to this ct, LL has to make reasonable efforts to try and get someone to lease – do the things you would normally do. What constitutes appropriate mitigation (162) depends on the type of property and the relevant market at any given time. Std of commercial reasonableness

Front 113

* What the (3) ways a Ll can mitigate if the trial takes place DURING the lease term? (If it's after the lease term, it's easy.)

Back 113

(1) Multiple cause of action, (2) Anticipatory breach, (3)Retained jurisdiction

Front 114

Explain the doctrine of Multiple cause of action?

Back 114

i. Multiple cause of action: LL would be in the position of suing periodically once every time rent would be due – or when the lease is over – bad b/c forces LL to wait till the end of the term or deal with separate, costly suits.

Front 115

Explain the doctrine of Anticipatory breach?

Back 115

Anticipatory breach: Bring suit now for all the rent due for the balance of the leaseterm. But creates other problems. The ct can only award damages to the LL in the amt that the ct feels it can reasonably predict down the road. Problem is when the court has to predict the fair rental value of the property at the end of the leaseterm, it could predict too little money and the LL doesn't get what he deserves

Front 116

Explain the doctrine of Retained jurisdiction?

Back 116

Retained jurisdiction: Best way to approach. Means that ct will retain jurisdiction over the matter. LL can come back to ct periodically and prove more damages without additional court costs- much simpler administratively than mult cause of action. Ct can adjust recovery as it goes along. More fair to the LL.

Front 117

What was Isbey v Crews about?

Back 117

(Summary judgment proceeding.) Isbey (P) and Crews (D) entered into rental agreement – D leased space from P for 5 years at $2,867.33 per month. According to the lease, the space was only allowed to be used as a drs office and for a dialysis unit – no other use without Ps consent. Also, lease said that D can’t assign or sublet without consent. Ds moved out early (May 1980) and sought Ps permission to sublet to co that sells/distrib medical supples. Ps refused and brought action against Ds for $2,867.33 + interest for rent due. Trial ct awarded summary judgment for Ps and granted the $$. Ds appeal and ct affirmed summary judgment.

Front 118

What did the court in Isbey say regarding D's arguement that Ps unreasonably refused to consent to the sublease proposed by Ds and that even though the lease didn’t say anything about the LL needing to be reasonable in consenting, that the ct should read into the lease agreement an obligation for LL to not unreasonable withhold consent?

Back 118

No. Lease contained express restraint that allowed LL to withhold his consent. Didn’t say it had to be reasonable – and the ct doesn’t insert terms into a K when the parties elected to omit such terms.

Front 119

What did the Ct say in re: the Ds arguement that there was an issue of material fact in how damages were calculated – that LL need to exercise reasonable diligence to mitigate damages and that the LL did not do that here? (2)

Back 119

(1) No. Burden is on breacher (tenant/D) to prove that nonbreacher failed to exercise reasonable diligence. Ds offered no evidence on Ps alleged failure to exercise reasonable diligence to mitigate loss. (2) Note – why put burden on the tenant? B/c the tenant is the one who breached. Reid, however, put burden on the LL.

Front 120

What was Ruud v Larson about?

Back 120

LL and T had lease for gas station. Lease includes oblig to pay taxes. T fails to pay. Trial ct found that LL did satisfy need to mitigate and Sup Ct of ND agrees. LL has duty to make good faith effort, expending reasonable effort and diligence, to relet the property. Burden is on the T to est lack of good faith. T had contended that LL didn’t fulfill b/c didn’t hire real estate agent and b/c increased the rent. But new rent was considered fair market price. And even though no real estate agent, still had many contacts and worked to find new tenant in good faith.

Front 121

Whar was the issue in the Ruud case and what did the Ct hold?

Back 121

Issue = there was a sublease proffered to the LL and tenant said he would pay back taxes, but then took it back in negotiations. Tenant contends that LL refused to sublease property unless tenant paid back taxes, but yet the ct says that even though LL can’t condition his consent to sublease on payment of arrearages under the lease, still doesn’t apply here b/c LL never said that and tenant never asked LL to accept one without arrearages.

Front 122

Principal Problem 6: LL owns office building, leased part of ground floor to T (pharmacist) for 5 yrs. Clauses included 1) LL won’t lease other space to retail drugstores, 2) Premises to be used for no other purpose and not otherwise occup without LL consent, 3) T won’t sublet or assign without consent and LLs consent won’t be withheld unreasonably. Then LL got letter from T saying relocating and has a friend who may want to open hair salon there. LL wrote back saying T was legally responsible. LL never followed up with Ts friend, but did attempt to spread the word for new Ts among friends – temp lease to political org, but for rent sign in window, rented another vacant space to National Drugs. LL wants our advice. How would you start to answer this problem?

Back 122

Start by looking at whether the LL accepted the tenant’s offer to surrender.

Front 123

PP6: Did the LL accepted the tenant’s offer to surrender? (3)

Back 123

1. Letter was surrender, bc letter sent back was not acceptance of lease
2. In Reid, we saw that its about intentions of LL. Here, the LL: (a) Relet the property to political office and filled it with office equipment (b) He rented a diff space in the building to another drugstore, breaching his own lease.
3. Lessor’s response to this will be that mitigation is not an acceptance of a surrender.

Front 124

PP6: Assuming there is no acceptance of a surrender and you’re in a mitigation jurisdiction, did LL meet obligation to mitigate damages? (heart of the question) (2)

Back 124

1. Start with black letter stuff/framing mitigation discussion. LL oblig is to take commercially reasonable steps (Reid). LL has to exercise due diligence. Burden of proof - some jurisdictions put this on LL, others put it on the tenant.

2. Not withhold consent unreasonably – is IN the lease this time. Subtenant found a sublessor for LL and LL didn’t follow up on it. Lease clause says consent should not be denied unreasonably. Is the LL’s refusal unreasonable? Could argue either way. Say that Isbey case suggests that LL doesn’t have to be reasonable if not in the lease, but here it was in the lease. LL could not want the hair salon for business reasons.

Front 125

PP6: What about other elements of mitigating damages? (3)

Back 125

a. Commercially reasonable steps depending on busy downtown area or whatever kind of property you’re dealing with.

b. Then get into kinds of things LL will do…for rent sign, real estate agent, etc. She doesn’t care which way we come down on it, just wants us to list factors.

c. What else could he have done that he didn’t do? Didn’t hire real estate area, newspaper ad, online ad, etc.

Front 126

PP6: What damages should be awarded?

Back 126

There are 3 different options for damage calculations/when you bring suit: Multiple cause of action, anticipatory breach, retained jurisdiction.
--> It's possible that his storing stuff in space would decrease damages.

Front 127

Easements and covenants are both considered to be what?

Back 127

Non-possessory interests (servitudes), meaning they don’t possess the property but they have an interest in the property.

Front 128

Which party is always the servient estate?

Back 128

The Burdened party is always the servient estate. The burden is always negative – duty to just do nothing (not interfere with easement owner’s rights – walk on the footpath)

Front 129

What is the diff btw negative easement and covenant?

Back 129

It’s a grey area. Historically, certain kinds of duties are construed as easement (affecting air, light, water, support).
-->Easement duties run more easily than covenant duties.

Front 130

What are Easements are widely used to define?

Back 130

The legal relationships of landowners.

Front 131

What is an Easement? What does it do to land?

Back 131

An easement is a right to make specific limited use of land that is possessed by another person. Land is being burdened.

Front 132

What is meant by Express Easement?

Back 132

An expressed easement means that there is language in the deed or other writing that explicitly grants or provides for the easement.

Front 133

Why does the law tolerate servitudes?

Back 133

The Law tolerates servitudes b/c the burden is offset by the benefit to the other party. Parcel B is benefitted by becoming more valuable even though A is being burdened by allowing B to use path on As land to get to the ocean. (but there are servitudes with no benefit to the land)

Front 134

What are the 4 classifications of Easements?

Back 134

(1) Affirmative, (2) Negative, (3) Appurtenant, and (4) In Gross Easements

Front 135

What is an Affirm easement?

Back 135

An Affirm easement gives easement owner right to go on to someone’s land. Ex: I grant my neighbor a right to use road on my property (I am servient estate).

Front 136

What is a Negative easement?

Back 136

Negative easement gives easement owner right to enjoy whatever they’re enjoying by the easement, but no affirm right to other’s property. Ex: I have easement so Kwall agrees not to build structure that cuts off my view (I am servient estate).

Front 137

What is an Appurtenant easement?

Back 137

Appurtenant easement = attach to and benefit the land of the dominant estate (not servient estate). Easement runs with the land

Front 138

What is an In gross easement?

Back 138

In gross easement is a personal property interest. Don’t attach to and benefit the parcel of land, and personal to easement owner. Ex: I grant RR easement to go across my property. RR doesn’t own property in the area and easement isn’t appurtenant (= isn’t attached to any parcel of land).

Front 139

What (3) things should be included in the creation of an Easment?

Back 139

1. Conveyance of easements must be in writing and signed by the grantor. Drafter should specify the type of easement being created
2. It should usually take a form similar to a conveyance of a fee to real estate, except conveyance is for easement, not real estate. (It should create a right.)
3. In conveying real estate, the owner should transfer real estate “reserving” a right of way. (It preserves existing right.)

Front 140

* Sometimes, when conveying an easement, poor draftsmanship makes it difficult to tell whether the original parties intended to convey a possessory (fee) or a non-possessory (easement) interest in land. What (5) things should Courts look to decide wheter a fee or an easement?

Back 140

i. Grant will be construed in favor of grantee. (Northwest, Hurst)
ii. Property should stay effectively used.
iii. “Right of way” indicates an easement. (Northwest, Greaves)
iv. There is a presumption against allowing a fee to bisect a parcel of land (Greaves), but it is possible and legal (Hurst).
v. In the absence of other indications, a fee simple transfer is presumed rather than an easement (Hurst)

Front 141

What two words have distinct meanings language in conveyance?

Back 141

Language in conveyance that uses the term “reservation” of an interest, OR “exception” of an interest, have distinct meanings

Front 142

What does "Exception" mean in language of conveyance?

Back 142

Exception => tends to retain for the grantor a pre-existing interest of a part of the property. If the grantor started out with a fee and conveys the interest but excepted for himself an interest in the property. (pre-exisiting = fee)

Front 143

What does "Reservation" mean in language of conveyance?

Back 143

Reservation retains a new interest for the grantor. If the grantor had big piece of land, conveys it to someone but reserves a strip of land for himself, that would signal a reservation of an easement. (creating a new interest. You no longer own, but still have easement rights => easment)

Front 144

When looking at cases/exam q's, what question must be asked?

Back 144

Is it a a fee interest or an easement?

Front 145

What is a Fee interest?

Back 145

Fee interest = highest estate in land – complete, full transfer of land. When you purchase a home from another owner, the owner gives you a fee interest in that property. No exceptions or liens, usually.

Front 146

What is an easment interest?

Back 146

Easement = non-possessory interest in the property. Can use your neighbor’s footpath, etc. But no possessory interest.

Front 147

Does the fact a transfer is in a written instrument give you any clue as to whether it's a fee or an easement?

Back 147

No. Transfer of a fee/easement happen the same way – through a written instrument. B/c they were both req to be in writing, created confusion about whether the instrument transferred a fee/easement.

Front 148

What was Northwest Realty Co v Jacobs about?

Back 148

Iowa Ditch wanted to create irrigation system, needed permission from diff landowners. Had grants & easements and some weren’t specified. Guy named Smith gave IA a quitclaim deed for some of his prop. IA Ditch went under and conveyed prop to someone who conveyed it to P. On the other side of the v, Smith had the rest of his property and gave it to Phllips. After Phillips, it went to Jacobs. Jacobs is arguing that the interest that Smith conveyed to IA Ditch company was an easement. If it’s an easement, it would only have given the IA Ditch co the right to use the prop for easement purposes, and when the Ditch Co dissolved, it would go back to the grantor (and grantor’s successor – D). P argues that it was a fee title. Ct says it was an easement.

Front 149

Why was Northwest Realty confusing?

Back 149

Confusing b/c “all his estate” – is being transferred, which sounds like a fee. But to be used as a “right of way” suggests an easement.

Front 150

* According to Northwest Realty, what is the 7 Factor Test in determining Fee v. Easement?

Back 150

(1) Amt of consid: if high, would suggest a fee. It was high here, but ct said it was not abnormal for a perpetual easement to have high consideration for irrigation
(2) Particularity of the description of property conveyed: if particular, suggests fee. But here, not specific. Doesn’t say where the strip of land is.
(3) Limitation on the use of the property: if limitation, suggests easement. This was limited to irrigation system.
(4) Type of interest best serving purpose of the parties: Perpetual easement would provide Iowa Ditch with all rights necessary for construction of irrigation ditch.
(5) Wording in the document: Operative inquiry is the parties’ intent. Wording here isn’t helpful to determine intent, but the grant is construed in favor of the grantee. If the grantor wrote the contract, it will favor the grantee b/c the grantor should have written it better.
(6) Taxes: Iowa never paid taxes on the land so that cuts toward easement.
(7) How the parties have treated the property

Front 151

What is the Policy consideration against finding a fee?

Back 151

Policy against separate ownership of narrow strips of land. Would have cost the guy a lot of money to remove his concrete from the ditch and he was using it productively.

Front 152

What was Greaves v McGee about? What did the ct find?

Back 152

McGees own land and there’s minerals that are valuable underneath a road that is either a fee or an interest. P is the McGees. The P grantor wants the ct to construe this as an easement b/c then they can have the minerals. D wants it to be a fee so they own it. Ct said its an easement so P owns.

Front 153

Why was McGee confusing?

Back 153

Instrument – why is it confusing? B/c location is not well-defined and can be moved through the land at any time.

Front 154

In McGee, what 3 things were assessed?

Back 154

a. Intention of the parties: “right of way” suggests easement
b. Factual circumstances at the time the instrument was created: Strip of land was uncertain
c. Subsequent acts of the parties: Easement b/c Lamar admitted b/c they used it as the right of way, never claimed anything more.

Front 155

Normally, how is ambiguous language construed?

Back 155

Policy says that ambiguous language should be construed in favor of the grantee. (The grantor should have known better.)

Front 156

In both Greaves and Northwest Realty,was the ambiguous language construed in favor of the grantee?

Back 156

In both Greaves and Northwest Realty, we see that the policy that ambiguous language should be construed in favor of the grantee didn’t really happen in this case. Both went with construction that favored the grantor b/c they found other policies that were persuasive. Cts have flexibility to balance, weigh, measure factors and apply how they like.

Front 157

What was Hurst v Baker about? What did cts determine?

Back 157

Dispute over a roadway by neighboring property owners. About 94 acres of land were conveyed to the Lowks. Original landowner granted a section of the property (40 acres) and rights to the road that went through the remaining property. P = grantee of the 40 acres. P wants the interest to be a fee. D wants the Ps interest in that road to be considered an easement. This ct says it is a fee.

Front 158

Why did the cts rule the way they did in Hurst?

Back 158

It was the language: remember the bifurcated land policy (cts usually don’t like it so, would normally say easement). In concluding this is a fee, the operative word is “also a road 20 ft wide” – Grantor Lowkes is conveying to grantee this property, ALSO the road. Ct is convinced that you don’t need rules of construction here (only go to those when the language of the instrument is ambiguous).

Front 159

* What 3 reasons, according to Hurst, favor finding a Fee?

Back 159

1. Instruments should be construed most strongly in favor of grantee.
2. In the absence of clear language indicating intent to transfer a lesser interest by the parties, cts will presume that it was the transfer of a fee simple interest in property.
3. Finally, in the absence of language, a transfer of a strip of land is generally construed as passing an estate in fee. What about policy discouraging separate ownership of strips of land?

Front 160

Principal Problem 7: Al owns land. Decides to split land and sell one of the parcels but to retain the back half of the master tract where he built his house. Sells front half to Barbara. Both have access to public hwy system but the best road is the one that runs directly through her property. He wants to continue to use the road. Al says he’ll accept less $ if she allows him to keep using the road. He uses conflicting terms to land grant (reserving and excepting). It’s a road that could lead to inference of easement or fee. Erect fences but no gates – that was kind of a wash in the last case. --> What supports this being an easement? (4)

Back 160

1. Compensation – low in relation to the cost of the rest of the property
2. Needs/use – Al is using this land as a road, a right of way, that would be an easement.
3. Also as we saw in the last case, cts tend to interpret the instruments in favor of the grantee, who wants it to be an easement.
4. Also cts don’t like to divide up strips of land

Front 161

PP7: What supports this being a fee? (3)

Back 161

1. Deeds must be construed as conveying the grantor’s entire interest in the land described therein unless a clear limitation is placed.
2. Specificity – it’s the road, not the road if it moves or where it moves. That’s very much like the cases that were brought up by the losing party in Greaves.
3. Language – doesn’t say “right of way,” no explicit limitations on the use of the land.

Front 162

PP7: Which way would it go, in terms of policy?

Back 162

Could argue either way. From a policy standpoint, we would say easement b/c of bifurcated land policy and we favor the grantee and consider grantor’s intent

Front 163

Succession of Appurtenant Easements
--> Absent an express provision in the deed stating otherwise, when is an appurtenant easement is presumed to be transferred?

Back 163

An appurtenant easement is presumed to be transferred with the dominant estate.

Front 164

With the succession of appurenant easements, who is the Burden always presumed to run to?

Back 164

Burden is presumed to always run to the next possessor of the servient estate IF the parties intended it to run and the next possessor has notice of the easement.

Front 165

With the succession of appurenant easements, what must a possessor who purchases prop get re: the easement?

Back 165

If a possessor purchases prop, he must get notice or else the easement is extinguished

Front 166

* Explain the 3 types / means of NOTICE, with the succession of APPUTENANT easements.

Back 166

a. Constructive notice = If it’s recorded, You're liable bc u should have checked the title.
b. Inquiry notice = If you should have known about it. (i.e: if you can see it.)
c. Actual notice = it’s not recorded but someone tells you about it.

Front 167

With the succession of appurenant easements, if a possessor doesn't purchase property (inherit property, get it as a gift, or adversely possess (devisee’s) or get it intestate or are donee’s) and doesn't get notice, is she bound to the burden of the easement?

Back 167

Yes. People that inherit property, get it as a gift, or adversely possess (devisee’s) or get it intestate or are donee’s –all also bound to the easement without notice.

Front 168

With the succession of appurenant easements, what are the Benefits is assumed to run with?

Back 168

Benefits is assumed to run with the succession to the dominant estate if parties intended it to.

Front 169

With the succession of appurenant easements, if we can’t tell if it’s appur or in gross, what do we presume it to be?

Back 169

If we can’t tell if it’s appur or in gross, there’s a presumption of appurtenant

Front 170

When assessing Succession of Easements IN GROSS, what (2) things do we look at?

Back 170

We must look at both the (1) older view and (2) the new Restatement view?

Front 171

With Succession of easements in gross, what is the Older View?

Back 171

Old view – distinction btw commercial easements in gross and non-commercial easements in gross. Law presumed that a non-commercial easement in gross was presumed not to be assignable (unless evidence suggests otherwise). If it’s a commercial easement in gross (like Iowa Ditch Company), those were presumed to be assignable.

Front 172

With Succession of easements in gross, what is the New Restatement view?

Back 172

Restatement – all easements in gross are presumed to be assignable unless there’s intent otherwise.

Front 173

What is a covenant?
Distinguish btwn: covanantor and covenantee.

Back 173

Covenant is a promise made by one party to another party. Covenantor = promisor. Covenantee = promisee.

Front 174

How does the restatement view covenants and easements?

Back 174

Restatement lumps covenants and easements together as servitudes, but some cts still follow traditional view of separating them.

Front 175

What is an Affirmative Covenant?

Back 175

An affirmative covenant is when the covenantor promises not to take some action on her land. Affirmative covenants are allowed to run.

Front 176

What is a Negative Covenant?

Back 176

A negative covenant is a promise by the owner not to make/do or permit specified uses or activities on the land. The benefit of a negative covenant touches and concerns land when the covenantee’s land is made more valuable or enjoyable by observance of the covenant. (i.e: can’t have cats in a group home.)

Front 177

Ex1: What kind of covenant is a promise to only use house as single family residence?

Back 177

Ex: Covenant to only use house as single family residence is a negative covenant. Burdened party is promising to not use house as any other purpose.

Front 178

Ex2: What is a promise to pay dues?

Back 178

Promise to pay dues is an affirmative covenant.

Front 179

* What is the Key difference btwn BURDENED parties w/ easements v. covenants?

Back 179

Whereas the burdened party’s duty with an EASEMENT is ALWAYS NEGATIVE (= letting the easement owner do something or enjoy the view), with a COVENANT, the burdened party’s duty MAY BE BOTH (i.e: the burdened party may have to do something affirmative, like pay money).

Front 180

How can you tell the difference btwn Real covenants v. equitable servitudes?

Back 180

It can be both: We don’t know what it is categorized as what until someone sues. (1) The P who is suing to enforce the real covenant wants money/damages. Whereas, (2) the Equitable servitude is where the P wants to enforce the covenant in equity (injunction).

Front 181

What was Nahrstedt v Lakeside Condo about?
What did the Sup. Ct hold?

Back 181

Woman moved into condo and brought her cats. Condo had pet restriction covenant. Demanded she remove her cats and fined her for violating the rule. Sup Ct held that pet restriction wasn’t unreasonable

Front 182

In Nahrstedt, what was the issue w/ "reasonableness?"

Back 182

State statute said that cts should enforce covenants unless unreasonable. The burden is on the person challenging the covenant. The legislature had changed the provision from saying that restrictions are enforceable where reasonable to restrictions are enforceable unless unreasonable, illustrating a presumption of reasonableness/validity and a shift in the burden of proof from the Condo Assoc to the owner.

Front 183

Based on Nahrstedt, why does presumption makes sense?

Back 183

Presumption makes sense b/c it’s assumed that when you enter a common living place and have notice, you know there will be restrictions.

Front 184

* In Nahrstedt, the Ct said an equitable servitude will be enforced UNLESS what (3) things?

Back 184

Unless it:
1. Violates public policy
2. Bears no rational relationship to the protection, preservation, operation, or purpose of the affected land
or 3. Imposes burdens that are so disproportionate to its beneficial effects that it shouldn’t be enforced.

Front 185

What is Hill v Community of Damien about? What did the ct hold?

Back 185

D is group home for people with AIDS. A real estate development had a restrictive covenant that said that no lot can be used for any purpose but single family residence purposes. The D used a house there as a group home for 4 people who had AIDS. The Ps are four neighbors who live in the development. Moved for an injunction to enforce the covenant and not allow the group home. Ct held that the restrictive covenant wasn’t applicable to the group home (found for home).

Front 186

In Hill, what did the ct find in operating this group home was residential v. commercial use?

Back 186

The group home was supposed to be for residential use & the ct found that operating this group home was residential use. Not commercial. Gave specifics

Front 187

In Hill, where there was ambiguity re: the term "family" what did the ct do?

Back 187

Covenant didn’t define “family” and where there is ambiguity, weigh against restrictions. The Ct found residents of group home met single family req - Also the local zoning regs define family broadly (persuasive but not dispositive). Also public policy of including group homes within term “family.”

Front 188

* What are the Rule of Construction (i.e: how to resolve ambiguities in covenants) used by the Cts in Hill? (4)

Back 188

(1) If the language is ambiguous, resolve against restrictions
(2) Don’t read restrictions into the covenant by implication (property doesn’t like property to be burdened).
(3) Interpret the covenant reasonably and strictly
(4) Give the words their ordinary and intended meaning.

Front 189

What is Franklin v Spadafora about? What did the ct hold?

Back 189

The owners of a Condo building adopted a bylaw limiting the number of units that one person/entity can own to 2. The P owned 6. He then tried to purchase a 7th from another family in the building, and the Condo said it was violation. Ps (the buyer and seller) sued for declaratory relief. They also completed the sale. Sup Judicial Ct held that the bylaw was reasonable and sale was void.

Front 190

* According to Franklin, what Five Factors we need to consider when (a) what’s at issue is a restraint on alienation and (b) whether or not it’s lawful?

Back 190

Five factors:
(1) Interest in the land
(2) Duration of restraint
(3) Ct waived this, BUT, as a general matter, the longer a restraint lasts, the less likely a court will find it reasonable.
(4) Worthwhile purpose
(5) Not against public policy. Continuity of residence is fair purpose.

(a) Type of conveyence prohibited
--> The conveyance prohibited is not any sale of a unit, but ONLY the sale of a unit to a person who already owns two.
(b) Number of persons affected
--> Not many were restricted by this because not many people own more than two condos there.

Front 191

In general, what do the Restatements (old/new) say about APPURTENANT & IN GROSS COVENANTS?

Back 191

--> Old Res said only appur covenants should run.
--> New Restment says covenant should run REGARDLESS of if appur or in gross, as long as parties intended it to

Front 192

* What is the rule that most american cts follow in re: to the running of IN GROSS Covenants?

Back 192

Most Amer cts don’t allow BURDEN OF COVENANTS to run IF BENEFIT is HELD IN GROSS.

Front 193

When there is a situation where there is running on one side, but not the other, what can be done?

Back 193

It may be enforced by orig party but not by or against successor.

Front 194

What must be met in order for a covenant to run? What are the (4) ANALYSES?

Back 194

If a covenant is going to run, every requirement has to be met.
--> In running analysis, we do 4 analyses: (1) burden at law, (2) benefit at law, (3) burden in equity, and (4) benefit in equity.

Front 195

What are the (5) ELEMENTS that we look at when assessing wheter a COVENANT RUNS?

Back 195

(1) Intent, (2) Notice, (3) Touch and Concern, (4) Vertical Privity, and (5) Horizontal Privity

Front 196

Under a covenant's BURDEN at LAW, what elements do we look at?

Back 196

All 5: (1) Intent, (2) Notice, (3) Touch and Concern, (4) Horizontal Privity, and (5) *STRICT Vertical Privity

Front 197

Under a covenant's BENEFIT at LAW, what elements do we look at?

Back 197

Only Three (3): 1) Intent, (2) Touch and Concern, (3) * RELAXED Vertical Privity

Front 198

Under a covenant's BURDEN at EQUITY, what elements do we look at?

Back 198

Only Three (3): (1) Intent, (2) Notice, (3) Touch and Concern,

Front 199

Under a covenant's BENEFIT at EQUITY, what elements do we look at?

Back 199

Only Two (2): (1) Intent and (2)Touch and Concern

Front 200

What does INTENT mean?

Back 200

Intent: for burden or benefit to run, parties must have intended it to run at the time they entered into the covenant.

Front 201

* Where do you look for INTENT and WHOSE intent do you look at?

Back 201

Look at language of instrument or inference from nature of covenant or surrounding circumstances. Just the intent of the ORIGINAL parties.

Front 202

If the agreement doesn’t show intent, what must you infer?

Back 202

If the agreement doesn’t show intent, means you have to infer the intent in other ways to get it to run. Touch and concern can be proxy.

Front 203

What does NOTICE mean?

Back 203

Notice: If a purchaser paid for prop, they have to have notice. But if dealing with people who didn’t pay, sometimes the notice requirement can be less strict. If state statute says that donee or designee is bound without notice, that is followed.

Front 204

Where do we look to find NOTICE?

Back 204

Remember:
a. constructive notice = it’s recorded: you are responsible for checking the title.
b. inquiry notice = you should have known about it…i.e. you can see it.
c. actual notice.= it’s not recorded but someone tells you about it

Front 205

What does TOUCH AND CONCERN mean?

Back 205

Touch and concern occurs when the subject matter of the covenant is found to “touch and concern” the land.

Front 206

* When looking at the element of TOUCH AND CONCERN in determining wheter a covenant runs, what (4) things must be addressed?

Back 206

(1) Traditional View
(2) Old Restatement View
(3) New Restatement View
(4) The Davidson Balancing Test

Front 207

* [1] What (2) things must be addressed under the T & C TRADITIONAL VIEW?

Back 207

(1) Clark's test and (2) some Cts req physical T&C under the trational view

Front 208

* What does CLARK'S test ask?

Back 208

Clark's test: = Is there an ECONOMIC or PHYSICAL impact?
- Does the burden make the land less valuable or benefit make it more valuable?
- In general, cts shy away from physical test b/c very restrictive

Front 209

* What does it mean for the T&C to be economic or physical?

Back 209

Ex1: On the BURDENED side, if you restrict how the property can be used. (economic)
Ex2: On the benefitted side, if the covenant subject matter was the provision of water to irrigate the benefitted land, that BENEFIT would T&C the land physically.

Front 210

* [2] How does the OLD RESTATEMENT deal w/T&C?

Back 210

It addresses the burden and the benefit seperately.

Front 211

* How does the OLD RESTATEMENT address T&C BURDENS at Law & in Equity?

Back 211

At LAW: Burden of covenant will not run at law unless there is some physical benefit to land connected to the covenant (either to land of covenantor or covenantee). Sec 537 of Res.
In EQUITY: Burden doesn’t need to physically affect the land. Sec

Front 212

Ex of covenant that doesn’t run at law under old Res: Burdened party wasn’t allowed to use land for a hair salon. This restricts how William’s property can be used, but if William opens a hair salon and violates the covenanent w/Bertha, how will it be address under the Old Restatement?

Back 212

Even though the salon is physical, the old Res won’t allow it to run unless there was a phys benefit to land. William only gets phys burden and Bertha doesn’t get phys benefit. Since there’s no phys benefit to land, Bertha could get an injunction but can’t get damages.

Front 213

* How does the OLD RESTATEMENT address T&C BENEFITS?

Back 213

iSec 543 – also says the benefit can only run if there is a physical benefit. * This view has been largely discredited.

Front 214

* [3] How does the NEW RESTATEMENT address T&C?

Back 214

The New Restatement View: Abandons T&C. Instead says that covenants run unless the covenant is illegal, unconstitutional, or violates public policy.

Front 215

* [4] How does the DAVIDSON TEST address T&C?

Back 215

It assesses the (8) "Reasonableness" Factors

Front 216

What are the (8) Reasonableness Factors of the Davidson Test which should be assessed when considering T&C for running covenants?

Back 216

1. Intention of the parties (conventional, one of std running reqs)
i2. Whether covenant had impact on considerations exchanged (whether covenant added value to the purchase price?)
3. Whether it clearly and expressly sets forth the restrictions
4. Whether it was in writing, recorded, and if grantee had actual notice
5. Whether it is reasonable concerning area, time or duration. (when it gets too long, not good. Don’t like to burden property forever)
6. Whether it imposes an unreasonable restraint on trade/secures monopoly (this comes back down to a covenant not to compete, where there’s only one place to do biz)
7. Whether interferes with public interest (new Restatement-ish)
8. Whether even if it was reasonable then, changed circumstances make it unreasonable now.

Front 217

Can changed circumstances impact the outcome?

Back 217

Yes. Changed circumstances can impact – either don’t enforce cov and P loses property, or you can say supermarket stays, but going to pay the P damages for the loss of his property (which is what the concurrence seems to be suggesting) Kwall says this is more appropriate as a defense.

Front 218

What does VERTICAL PRIVITY mean?

Back 218

Vertical Privity is the relationship btw the promisor and his successors, or to the relationship btw the promisee and his successors

Front 219

When looking at the element of VERTICAL PRIVITYin determining wheter a covenant runs, what (2) things must be addressed?

Back 219

(1) Traditional View
(2) New Restatement View

Front 220

* [1] What (2) things must be addressed under the VERTICAL PRIVITY TRADITIONAL VIEW?

Back 220

(1) The Running of the Benefit and (2) The Running of the Burden

Front 221

Under the VERTICAL PRIVITY TRADITIONAL VIEW, what is required for the RUNNING OF THE BENEFIT?

Back 221

Running of the Benefit: At least relaxed vertical privity is necessary.

Front 222

What is Relaxed Vertical Privity?

Back 222

This means that the Successor can have a lesser estate than the original promisee – just needs some interest.
--> Life estate, lease are ok

Front 223

Under the Vertical Privity TRADITIONAL VIEW, what is required for the RUNNING OF THE BURDEN?

Back 223

Running of the Burden: Strict vertical privity is required.

Front 224

What is Strict Vertical Privity?

Back 224

This means that the Successor to the promisor must have succeeded to the same estate as that owned by the original promisor. Must be exact same interest.

Front 225

* What (2) things MUST exist in order for Vertical Privity to exist?

Back 225

(1) The transferor must have been one of the parties to the covenant, and (2) must give to the transferee her complete interest. If that doesn’t occur, vertical privity doesn’t exist under this view.

Front 226

Is a life estate or adverse possession enough to acheive Verical Privity?

Back 226

No. A Life estate is example = of not enough. Goes back to Mom’s estate when daughter dies. If you lease the property out, not a fee, its an estate of lesser duration. Adverse possession – no privity (strict or relaxed) b/c no connection btw orig owner and new person.

Front 227

Under NEW RESTATEMENT VIEW, how is Vertical Privity treated?

Back 227

The New Restatement REJECTS the traditional concept of Vertical Privity

Front 228

What does the VertPriv NEW RESTATEMENT say about APPURTENANT BENEFITS AND BURDENs?

Back 228

VertPriv NEW RESTATEMENT says appurtenant burdens and benefits run to all subsequent owners of benefitted and burdened property, with 3 exceptions

Front 229

* What are the (3) exceptions in VertPriv NEW RESTATEMENT, of appurtenant burdens and benefits runing to all subsequent owners of benefitted and burdened property?

Back 229

(1) One who holds title superior to that of the original creator of the servitude cannot be burdened. If a bank forecloses on property, for ex, that is subject to (and burdened by) a restrictive covenant, the bank holds title superior and cannot be burdened.
(2) With respect to affirmative covenants, persons who hold estates of lesser duration than those of the original covenanting parties are not subject to the burdens and cannot obtain the benefits of such covenants, except in certain situations involving lessees and life tenants.
3. Persons holding possession adversely generally cannot obtain benefit of affirm covenants, but may be burdened. Note: does allow them to obtain the benefit of affirm covenants to repair, maintain and render services to property

Front 230

* What are the (2) exceptions to the 1st and 2nd rule: With respect to affirmative covenants, persons who hold estates of lesser duration than those of the original covenanting parties are not subject to the burdens and cannot obtain the benefits of such covenants, except in certain situations involving lessees and life tenants.

Back 230

(1) Exception to exception 1: The benefits of affirm cov to repair, maintain, or render services to the property run. Also the benefits of affirm covenants that can be enjoyed by the lessee without diminishing value to lessor and without materially increasing burden of performance, run.
(2) Exception to exception 2: benefits and burdens of affirmative covenants generally do run to life tenants, but liability for performance is usually limited to the value of the life estate.
--> These footnotes/sub-exceptions kind of cancel out the 2nd exception.

Front 231

* What is an exception to the 3rd rule: Persons holding possession adversely generally cannot obtain benefit of affirm covenants, but may be burdened. Note: does allow them to obtain the benefit of affirm covenants to repair, maintain and render services to property?

Back 231

Exception: Affirm covenant can run if benefits can be enjoyed by the person in possession without diminishing their value to the owner of the property and without materially increasing the burden of performance on the person obligated to perform the covenant.

Front 232

Ex: 1. Shop goes out of business. Another company moves in to the vacant lot without paying. If that company satisfies statutory period, would be an adverse possessor. Before it meets that time req, its holding possession adversely. What can the company holding possession do?

Back 232

The company holding possession adversely can’t obtain the benefits of the affirmative covenant (unless its covenant to repair, maintain, and render services to the property, which it’s not).

Front 233

VertPriv Example: Lessee with 60 yrs lease – promises lessor to never sell shoes on property (negative) and to pay real estate taxes (affirmative). Lease provides that these covenants are intended to run with lease premises. Lessee creates life estate in favor of Rachel. Rachel has notice of lessee’s promises but the agreement is silent on them. What if Rachel sells shoes but fails to pay real estate taxes? (* What will we be assessing?)

Back 233

First we look at the Tradtional view of Vert Priv (burden at law & Equitable Relief) and then we look at the New Restatement (burden of negtv covenant & burden of affrimtv covnt).

Front 234

Looking at the Traditional View of VertPriv, what can we deduce? (2)

Back 234

(1) When it comes to the burden at law, you need strict vertical privity and Rachel will not have to pay damages b/c she is not in strict vertical privity b/c it’s a life estate. Legal relief is impossible.
(2) In terms of equitable relief, vertical privity doesn’t matter. So lessor can get an injunction so she can’t sell shoes on the property and can get court order/declaratory judgment requiring her to pay taxes, but couldn’t get damage relief for prior failure.

Front 235

Looking at the New Restatement View of VertPriv, what can we deduce? (2)

Back 235

The New Restatement view (which draws its distinctions btw affirm and negative convenant, not at law and equity like trad view). So we can deduce:
(1) With burden of negative covenant, she’s liable. The 3 exceptions don’t relate to negative covenant, so the shoes thing runs.
(2) With burden of affirm covenant, default position is that it would run but the second exception applies (estate of lesser duration).
--> See footnote 28 – runs to life tenant subject to provison that life tenants liability is limited to the value of the life estate. She will have to pay the taxes, but won’t have to pay more than the value of her life estate.

Front 236

What is HORIZONTAL PRIVITY?

Back 236

Horizontal Privity = Relationship btw the original contracting parties

Front 237

What element must be assessed with HORIZONTAL PRIVITY?

Back 237

Only the TRADITIONAL VIEW

Front 238

Under the TRADITIONAL VIEW, what is required for HORIZONTAL Privity to exist?

Back 238

The most restrictive form is called Massachusetts Privity. and it requires that the covenantor / covenantee hold simultaneous interests in the property. This is accomplished through LL/tenant relationship, easement dominant/servient owners.

Front 239

Under the TRADITIONAL VIEW OF HORIZONTAL Privity, how does the majority view the Mass. Privity doctrine?

Back 239

Majority rule liberalizes this and holds that a deed/transfer of prop will also satisfy horiz privity, b/c at the moment it transfers they have simultaneous interests in the land. Covenant btw neighboring landowners won’t apply.

Front 240

What is the New Restatement's view of Horizonatal Privity?

Back 240

New Restatement position is to get rid of it.

Front 241

What was Runyon v Midgett Realty about? What was the cts holding?

Back 241

D wanted to build a condominium on land that was conveyed to him, but was in violation of restrictive covenant in the deed. Both the successor to the conveyor and a neighbor brought suit to enforce the use restrictions on the property. Ct uses traditional view. Found that Williams covenant ran with the land and can enforce, and Runyons (neighbors) don’t have standing to enforce.

Front 242

How was T&C assessed in Runyon? (burdened / benefitted side)?

Back 242

a. For the burdened side, the restriction clearly T&C b/c restricts what you can phys do with the land.
b. For the benefitted side, ct says has to show that the covenant economically affects the dominant estate. Concludes that it does T&C b/c considering the close proximity of the lands involved here and the relatively secluded nature of the area, would affect all their land values.

Front 243

How was Horizontal privity assessed in Runyon?

Back 243

Horizontal privity – not a question here b/c the covenant was created in connection with the transfer of an estate in fee. What about in MA? Not a LL/tenant rel. But is it an easement? It could be b/c the duty is negative – may be an easement relationship. But Kwall doesn’t care if we decide its a negative covenant or an easement, just have to know why it could be either.

Front 244

How was Vertical privity assessed in Runyon?

Back 244

Vertical privity –Vert privity problem is the Runyons in this case. Prob is that the covenant btw Gaskins and Brughs occurred after the Runyons got the land. They’re irrelevant to the covenant. Not 3rd party benef under K law b/c weren’t there or intended to be, irrelevant parties.

Front 245

How was Intent assessed in Runyon?

Back 245

Intent – look at the language of the deed. Deed had clear expression that burden run. Didn’t say benefit expressly. So, to find intent on the benefitted side, ct determines that it runs by looking at the nature of the restriction and the evidence of the parties’ situation

Front 246

What was Davidson Bros v Katz about?

Back 246

Davidson (P) owned 2 grocery stores. A was losing $ b/c of the competing business from the other store, so the Ps conveyed it to Katz (D) with restrictive covenant to not operate a supermarket. The instrument said it ran with the land and it was recorded. Closure of store A was a prob for the residents who asked the Housing Authority (other Ds) for a grocery store. Authority bought the property and D C-Town rented the space for a grocery store. All Ds had actual notice of the restriction and Ps intent to enforce, but did it anyway. P requested a declaratory judgment that the non-competition covenant was binding on all subsequent owners of the property. Ct reversed lower cts decision that covenant didn’t run and remanded for NEW test…

Front 247

What did the ct in Davidson end up doing?

Back 247

Ct adopts a reasonableness test. Model for T&C - talk about this case when we talk about T&C on an exam, despite the fact that this test is not about T&C. Ct says T&C is one of many factors to see whether covenant should be enforced down the line.

Front 248

What was the new test under Davidson?

Back 248

The 8 Factor Reasonableness Test

Front 249

What did the new Davidson test do?

Back 249

Under traditional running analysis, there’s no room to ask about relative hardship or changed circumstances. You’re asking instead whether the value of this covenant increases or decreases the value of the land. Davidson pushes the envelope – asking if there’s another reason the covenant shouldn’t go on. Similar to what defenses are doing from a conceptual standpoint.

Front 250

Principle Problem 8: (Sample Exan Q) => Covenant to sell water – legal relief (Nisa wants the water)

- This is an affirmative covenant b/c required to take action – to provide the water. For Nisa to prevail, she has to show that the benefit runs to her and the burden runs to Lori, b/c there’s succession on both sides. If there was no Lori, she would only have to show that the benefitted side runs.
How would you begin this problem?

Back 250

You must realize you have two covenants here which will have to be addressed seperately: (1) Covenant to sell water and (2) Covenant for single family homes

Front 251

PP8: Now that you've identified that you have two seperate covenants, what must you do?

Back 251

For EACH COVENANT, you must: 1) Look at the BENEFIT at LAW = Assess Intent, Vertical Privity, & T&C; (2) Look at the BURDEN at LAW = assess the Intent, T&C, HorizPriv, & Vert Priv, (3) Look at the BENEFIT at EQUITY = Intent, & T&C; and (4) BURDEN at EQUITY = T&C, Intent, & Notice

Front 252

Discuss the INTENT element of the BENEFIT at LAW of the Covenant to Sell Water.

Back 252

Intent = the Instrument said the covenants shall run with the land.

Front 253

Discuss the VERTICAL PRIVITY element of the BENEFIT at LAW of the Covenant to Sell Water. (2pts)

Back 253

(1) Under the Traditional view, we need relaxed VP. We have relaxed vertical privity because the successor is getting some interest from the original party. She actually has strict vertical privity because she had a complete transfer.

(2) Under the New Restatement view - §5.2, the default rule is that covenants run. None of the three exceptions apply. (Don’t discuss the three exceptions if its really clear that they don’t apply to the running of the benefit, like here).

Front 254

Discuss the Tch& Concn element of the BENEFIT at LAW of the Covenant to Sell Water. (1st 2 pts)

Back 254

(1) Under the Traditional view, whether phys or economic, there is an economic impact b/c there is no well on Lori’s property so the trucking of water into her property affects the use/value of the land. But Eagle says differently – says it isn’t phys or economic. Cts may differ on this. Prof wants description of T&C under this view and application and acknowledge that the applic is murky here.

(2) Under the Old Res, there has to be physical. Do an analysis of whether the benefit is physical – here we don’t know. If she uses the water in the production of beer in her brewery, that’s less physical than maybe a flower garden.

Front 255

Discuss the Tch& Concn element of the BENEFIT at LAW of the Covenant to Sell Water. (nxt 2pts)

Back 255

(3) Under the New Res, it will run unless it goes against public policy, is unconstitutional, or illegal. How long is the covenant supposed to last? There is no duration. Prof wants us to throw in that if there isn’t a durational limit, the Res doesn’t care unless it goes against public policy etc.

(4) Under, Davidson's Reasonableness factors, it's more flexible than other T&C tests. What did Davidson do with T&C? It incorporated T&C into the factors – one of the factors to consider. One thing you want to see that may be problematic under Davidson is (PS Don’t memorize these) length of time – will make a covenant unreasonable if duration is excessive.

Front 256

What does the benefit running on the covenant depend on?

Back 256

o Whether the benefit of the covenant runs will depend on whether there was T&C and which test you’re using.

Front 257

Discuss the INTENT element of the BURDEN at LAW of the Covenant to Sell Water.

Back 257

Intent: The instrument shows the intent to run.

Front 258

Discuss the T & C element of the BURDEN at LAW of the Covenant to Sell Water.

Back 258

(1a.) Traditional view = Physical? (you can say “see before” for the rules but do diff analysis). Maybe not physical impact b/c the covenant requires that they remove not more than 500 gallons of water per day – just says the water has to be made available, doesn’t say it needs to be taken from his land. B/c covenant doesn’t req that the water comes from George’s well, then maybe not phys burden. May still say it should overall be considered phys b/c good possib that the water will go from his land.
(1 b.) Economic? If water is actually being removed from land, could be economic burden on the value of the land.
2. Old Restatement => Section 537 - Burden runs at law only when there’s a physical benefit on either side. Then can reference back to previous analysis on both sides to whether or not there’s a phys benefit on either side.
3. New Restatement => See rule and application infra.
4. Davidson =>See rule and application infra.

Front 259

What should you be careful of when writing about the T&C element on the Burdened side?

Back 259

in writing the burdened side, do we want to say see discussion on benefit side? No, the rules are diff and so is the analysis!

Front 260

Discuss the HORIZONTAL PRIV element of the BURDEN at LAW of the Covenant to Sell Water. (3pts)

Back 260

Remembr: Horizontal Privity = the reltnshp btw original parties.
(a) MA privity – only relationships are ones where both parties have simult interests. Like LL/tenants, easements. Under that test, original parties were neighbors so no horiz privity.
(b) In the majority of jurisdictions (less restrictive), horizontal privity can be satisfied if the parties to the covenant engage in a fee transfer. Also btw LL and grantees of land b/c they hold the simultaneous interest in the land (fiction) when hands the deed over. Relationship btw neighboring landowners doesn’t suffice. No horiz privity.
(c) New Restatement gets rid of horiz privity req.

Front 261

Discuss the VERTICAL PRIV element of the BURDEN at LAW of the Covenant to Sell Water. (2pts)

Back 261

Remembr: Vertical Privity = rel btw orig granting parties and successors to each estate.
(1) Traditional view – strict vert priv => This means that the transferee has to take exactly the same interest as the transferor.
Ex – assignee but not LL/tenant (b/c lesser estate) The transferor is one of the parties to the covenant, and must give her complete interest to the transferee. There's no strict vertical privity between George and Lori, so under the traditional approach, the burden of the covenant didn’t run to Lori. [Some cts may find lease does suffice b/c=> life tenant.]
(2) New Restatement: (a) Default rule that appurtenant affirm benefits and burdens will run to all subsequent owners.
(b) There are three exceptions: Exception 2 – Footnote 28 is the exception to the exception (life tenant, like Lori) Will run to her and she’ll be liable for damages, but limited to the value of her life estate.

Front 262

Discuss the NOTICE element of the BURDEN at LAW of the Covenant to Sell Water.

Back 262

Notice was given based on facts.

Front 263

Discuss the INTENT element of the BENEFIT in EQUITY of the Covenant to Sell Water.

Back 263

Same as discussed on the law side.

Front 264

Discuss the T&C element of the BENEFIT in EQUITY of the Covenant to Sell Water.

Back 264

Same as discussed on the law side.
--> Note: In exam application, since both the rules and applications are the same as at law discussion we already did, you can say that.

Front 265

Discuss the INTENT element of the BURDEN in EQUITY of the Covenant to Sell Water.

Back 265

Same as discussed on the law side.

Front 266

Discuss the NOTICE element of the BURDEN in EQUITY of the Covenant to Sell Water.

Back 266

Same as discussed on the law side.

Front 267

Discuss the T&C element of the BURDEN in EQUITY of the Covenant to Sell Water.

Back 267

Same as discussed on the law side.
--> Under the Old Restatement, at law does have to physically affect the land (physical benefit to either benefitted or burdened party is required), but in equity it does not.

Front 268

What is the first thing you should spot about the Covenant for single family homes?

Back 268

It is a Negative covenant. Thus, we will factor this in when we get to some of the new Restatement positions

Front 269

Discuss the INTENT element of the BENEFIT at LAW for the Covenant for single family homes.

Back 269

ntent? – Yes, the parties intended for the benefit to run with the land. See instrument. (See prior analysis)

Front 270

Discuss the VERT PRIV element of the BENEFIT at LAW for the Covenant for single family homes. (2pts)

Back 270

Vertical privity
(1) Traditional view: Need relaxed vertical privity (See prior analysis)
(2) New Restatement: Default rule is that covenant runs – this is a negative covenant and the exceptions only apply to negative covenants.

Front 271

Discuss the T&C elements of the BENEFIT at LAW for the Covenant for single family homes. (4pts)

(Remeber: w/ T&C, you don't have to restate the rules. Just need new analysis)

Back 271

(1) Traditional approach (a) We need to know if the covenant physically or economically affects the land.
(b) There is an economic impact b/c perhaps the property value would be affected if their neighbor split their land into lots and sold houses on each lot. Does have a physical benefit to the benefitted property, due to air and light considerations.
(2) Old Res = Benefit runs at law only if it physically affects the benefitted land. Does have a physical benefit to the benefitted property, due to air and light considerations.
(3) New Res = It will run unless it goes against public policy, is unconstitutional, or illegal. Here, there is no duration specified in the covenant. But even if there isn’t a durational limit, the Res doesn’t care unless it goes against public policy etc.
(4) Davidson => Reasonableness factors – One thing that may be problematic under Davidson is (PS Don’t memorize these) length of time – could make a covenant unreasonable if duration is excessive.

Front 272

PP8: Discuss the INTENT element of the BURDEN at LAW for the Covenant for single family homes.

Back 272

Intent – yes, in the deed

Front 273

PP8: Discuss the NOTICE element of the BURDEN at LAW for the Covenant for single family homes.

Back 273

Notice – yes, see above.

Front 274

PP8: Discuss the T&C element of the BURDEN at LAW for the Covenant for single family homes. (4pts)

Back 274

(1) Traditional view: (a) Physically restricting the land.
and (b) Don’t need to go to economic because covenants restricting the use of the land are physically affecting the land.
(2) Old Restatement => Section 537 - Burden runs at law only when there’s a physical benefit on either side. There is.
(3) New Restatement => See rule and application infra.
(4) Davidson => See rule and application infra.

Front 275

PP8: Discuss the HORIZONTAL PRIV element of the BURDEN at LAW for the Covenant for single family homes. (2pts)

Back 275

=> relationship btw original parties.
(1) Same rules and applications infra.
(2) Horizontal privity doesn’t change with the new covenant.

Front 276

PP8: Discuss the VERTICAL PRIV element of the BURDEN at LAW for the Covenant for single family homes. (2pts)

Back 276

=> reltnshp btw orig granting parties and successors to each estate.
(1) If you’re running out of time, say that this is a negative covenant, and under the new Restatement, will run. Those three exceptions don’t apply to negative covenants.
(2) Note: Negative covenants are more likely to be enforced in equity, rather than at law

Front 277

What do Covenants Defenses rest on?

Back 277

B/c covenants originated in K law, not prop law, defenses often rest on K theories. Ex: waiver, estoppel, and laches (undue delay in enforcing one’s rights).

Front 278

What are 2 other Covenant Defenses?

Back 278

Changed circumstances and Relative hardhip, but they only come into play when talking about enforcement in equity.

Front 279

Explain the Covenant Defense of Changed Circumstances? (a + b)

Back 279

a. Cts may refuse to enforce a covenant if changed circumstances make it unlikely that enforcement will be of substantial benefit to the covenantee or her successors.
b. Korngold treatise: applied only if changed conditions have adversely affected the benefitted lots, making it impossible to achieve orig parties’ intent, even if enforced.

Front 280

Explain the Covenant Defense of Relative Hardhip?

Back 280

a. Cts may refuse to enforce a covenant if enforcement will result in a hardship to the burdened owner that is disproportionate to the benefit from enforcement.

Front 281

What was Chevy Chase Village v Jaggers about? What did the ct hold?

Back 281

Suburban community enacts covenant that said you can only use certain sections for (solely) commercial purposes. Became a problem when dr, who had been using home as an office as well, wanted to move out and use it as an office. Residents of the neighborhood/the subdivision brought suit. Ct held that dr is enjoined from using property as office unless he actually lives there too.

Front 282

In Chevy Chase, had ‘changed circumstances’ in the neighborhoods made the restrictions not useful anymore?

Back 282

No, only minimal deviations from using the lots for residential purposes. Not a substantial enough change.

Front 283

In Chevy Chase, had ‘hardship’ made the restrictions not useful anymore?

Back 283

No, Dr is not so burdened by the restriction that it outweighs the overall interest of the community.

Front 284

What did the ct do w/the laches and estoppel arguments?

Back 284

Ct rejects laches and estoppel arguments. Laches – no, although dr argues that other people use homes as offices as well and he did too for 20 yrs without objection, didn’t matter b/c diff now that not combined home/office use. Didn’t waive.

Front 285

What was Orange and Rockland Utilities v Philwold Estates about? What did the ct hold?

Back 285

Guy owned property on either side of the river. Sold both to Crane and restricted the use of one lot (and to heirs) for hydroelectric. Retained hunting and fishing rights on both pieces of property. Land (restricted) then owned by Orange and Rockland, and land next to that now owned by Philwold Estates. New statute said no hydroelectric on the land, so the O & R can’t use the land. Brought suit to not enforce/extinguish covenant b/c land otherwise would be useless. Philwold tries to argue it would hurt its rights to not enforce the covenant. Ct held that it is extinguished.

Front 286

According to O&R Utilities, when can a State statute extinguish acovenant?

Back 286

State statute says can extinguish the covenant if the restriction is of no actual benefit to the person seeking the enforcement, or purpose of restriction has already been accomplished, for other reasons, etc.
--> If covenant is eliminated, party could get one time damages.

Front 287

Why was the covenant extinguished?

Back 287

The Covenant was extinguished b/c the new statute renders the land wholly useless under the present circumstances.

Front 288

Although Ct held that the covenant couldn’t be enforced, what did it say about the easement interest?

Back 288

Although Ct held that covenant couldn’t be enforced, also said that the easement interest is still good – can still hunt and fish, can bring another suit if that is ever harmed or injured. However, he can’t bring another suit for the damages of the covenant b/c he failed to originally.

Front 289

Under the doctrine of AP, what can one can do?

Back 289

Under doctrine of AP, one can acquire ownership of land without payment of $$ and without consent of record owner

Front 290

What are the six requirements needed to become an AP?

Back 290

1. Hostility
2. Under a claim of Right
3. Actual Possession
4. Openness and Notoriety
5. Exclusivity
6. Continuity

Front 291

What is the range for the state’s statutory length of time to become an AP?

Back 291

Anywhere from 5 – 60 years

Front 292

During interim period before AP meets the reqs, what can the AP be liable for and subject to?

Back 292

During interim period before meets AP reqs, is liable for trespass and subject to ejectment.

Front 293

What are the (6) reasons the law tolerates the doctrine of AP?

Back 293

1. Utilization of the land – not abandonment (no overlap with personal prop)
2. To quiet disputes over who owns what – after a certain point, we want certainty. (overlap with personal property)
3. Protects the reliance interest of someone who thinks they’re the owner of the property. (less overlap probably with personal property). Ex: may think you’re the owner of the property, put a lot of $ into improving the property.
4. Third party reliance on the adverse possessors possession of the property (less overlap with pers prop)
5. Encourages owners to monitor their property – doctrine can also punish negligent record owners.
6. Note: in many instances, we’re talking about mistake, not squatters. Boundary lines that aren’t quite clear, faulty deeds, etc.

Front 294

What are some of the policies against the doctrine of AP? (2)

Back 294

Anti-AP policies include:
1. AP can violate a title owner’s right to the land that they paid for
2. We don’t want to reward bad faith behavior by squatter.

Front 295

What are (3) ways that adverse possession may come to be litigated?

Back 295

1. Adverse possessor can bring action to quiet title
2. Record owner to bring action to eject the adverse possessor off the property, or record owner could bring quiet title action with the same effect.
3. If the record owner wants to take steps to get AP off property, can do something before bringing suit – can oust the AP (take an action to let the AP know that they are getting kicked off the property) Can put up a fence and a no trespassing sign.

Front 296

Explain the concept of "Color of Title?"

Back 296

Color of title: = When an individual believes that there is a written document that gives him good title, such as AP. Deed could be defective, have the wrong description – several possible reasons about why it is not effective. But when color of title exists, the law of AP is applied more liberally

Front 297

Ex: If an AP is occupying a small corner of someone else’s land, but if there is color of title, what will he get?

Back 297

The AP will get title to the entire property described in their faulty deed, not just the piece they’re occupying..

Front 298

Ex: What do some states do for color of title cases?

Back 298

They lower statute years req for color of title cases.

Front 299

AP: How do most cts deal w/ "hostility" and "claim of rights?

Back 299

Most courts lump together “hostility” and “claim of right” as one concept

Front 300

AP: In re: to the "hostility" req of Adv Possn, what is the MAINE Standard? (4pts)

Back 300

- subjective -bad faith
- Says Hostility does not exist without affirmative ill will or bad faith.
- MINORITY view/position.
- Claim of right isn’t really an issue of consideration – subsumed in hostility

Front 301

AP: In re: to the "hostility" req of Adv Possn, what is the OBJECTIVE MAJORITY (Tioga )Standard? (4pts)

Back 301

- Majority view
- You don’t look at the mindset of AP. If AP is occupying the property in open, notorious, continuous, actual, exclusive manner, have hostility.
- One disadvantage is you can’t punish a horrible AP.
- Claim of right isn’t really an issue of consideration – subsumed in hostility.

Front 302

AP: In re: to the "hostility" req of Adv Possn, what is the OBJECTIVE MINORITY (Halpern) Standard? (2pts)

Back 302

- Objective actions by the AP give rise to a rebuttable presumption of a good faith claim of right. If record owner has evidence that can overrule the presumption, that will take away the AP’s presumption of a good faith claim of right.
- Ct differentiates hostility and claim of right. The hostility is the objective occupation of the land. Presumption of good faith + objective hostility = claim of right.

Front 303

AP: In re: to the "hostility" req of Adv Possn, what is the IOWA VIEW? (2pts)

Back 303

- Knowledge of defect of title is not alone sufficient to deter good faith.
- You need good faith but doesn’t say how to find it.
- Objective conduct of exercising control and dominion over the property may give a basis.

Front 304

AP: In re: to the "hostility" req of Adv Possn, explain the req'd AFFIRMTV Showing of GOOD FAITH? (2pts)

Back 304

- This contrasts to the first step in the spectrum, which requires subjective bad faith.
- Claim of right isn’t really an issue of consideration – subsumed in hostility.

Front 305

What happened to the Maine Std / Subjective Bad Faith?

Back 305

It was Overruled by appellate court, using objective standard.

Front 306

What do we look at when using the MAJORITY OBJTV STD?

Back 306

Look to actual facts of possession – if other elements are met, hostility is implied.

Front 307

What 2 cases exemplify the MAJORITY OBJTV STD? Explain.

Back 307

(1) Tioga v Supermarkets: Land btw Tioga Coal Co and Supermarket Co – abandoned. Tioga maintained a gate with a lock on it and assumed that the land was abandoned by the city, but was actually part of the adjacent land’s title, which eventually became owned by Supermarket. Tioga didn’t have color of title but also not bad faith – thought they were protecting abandoned city land. Ct used the objective test/majority rule – if all other elements of AP have been satisfied, including the 21 yr req, then hostility will be implied regardless of the state of mind.
--> Trying to see into the possessor’s mind is little better than guesswork, and APs put down roots that the judiciary should not disturb.

(2) ITT Rayonier v Bell: Hostility/claim of right element req only that claimant treat the land as his own through statutory period. Subjective belief irrelevant. Ct eliminates good faith requirement and found for ITT b/c Bell didn’t est exclusive possession.

Front 308

What case exemplifies the MINORITY OBJTV STD? Explain.

Back 308

1. Halpern v The Lacy Investment Corp: There was land at the back of Halperns land on Lacy’s land. Lacy’s predecessor refused to sell. Halperns ended up bulldozing it anyway and using it for almost 30 yrs. Filed suit for AP to quiet title. Lacy counterclaimed. Trial ct found that Halpern didn’t acquire the title because didn’t believe in good faith that Lacy’s property belonged to them.

Front 309

Explain the concept of CLAIM OF RIGHT via the Halpern case?

Back 309

In Halpern, the Ct said that good faith claim of right was one of reqs of AP = Once you have demonstrated those objective actions, that entitles you to a rebuttable presumption. Good faith is essentially presumed by hostile possession (objective conduct of occupying the property), absent a contrary showing. Record owner has burden of proving bad faith.

Front 310

What is the formula for Claim of Right?

Back 310

Objective hostility (conduct showing AP) + presumed good faith = claim of right.

Front 311

Explain the concept of HOSTILITY via the Halpern case?

Back 311

1. Majority view: Objective elements est hostility. Requires only that the claimant treat the land as her own as against the world through the statutory period and meet the elements – notorious, open, exclusive, continuity, actual possession. Yes, AP.

Front 312

Notes from PP of AP:

Back 312

PP Note: She may still lose under majority view b/c didn’t pay taxes on the property. Not every jurisdiction requires it but some do. The theory behind this is that if AP is paying the taxes, that is giving notice to the record owner that someone is APing the property. Is problematic where it exists b/c most AP situations involve boundary disputes and so its almost always going to be the record owner who is paying the taxes.

Front 313

Explain the AP requirement of Exclusive Possession?

Back 313

Exclusive Possession Requirement => 2 or more persons cannot hold one tract of land adversely to each other at the same time.

Front 314

What was ITT Rayonier v Bell about?

Back 314

The issue of Exclusive Possession: a Guy tied up houseboat on ITT’s property. Trial ct held that Bell failed to est exclusive possession and this ct affirms b/c use alone doesn’t constitute possession – must exercise dominion over the land in a manner consistent with actions a true owner would take. Bell never erected a fence, and intrusion onto the land by others wasn’t casual – they had houseboat near the same property for a longer period than Bell. He didn’t sufficiently possess the land. Have to occupy the land ACTUALLY as well as exclusively.

Front 315

Explain the AP requirement of Open and Notorious Requirement?

Back 315

Knowledge, either actual or imputed, of the possession of his lands by another, claiming to own them openly. When no actual notice, must show that possession was so open, notorious and visible so owner must or should have known.

Front 316

What was Marengo Cave v Ross about?
What did the ct hold?

Back 316

The Open and Notorious Requirement: P here was the record owner, seeking to quiet title, and get the AP out of his cave prop. P only realized that part of the cave was underneath when there was a survey of the land. Ct held that cave occupier’s possession was not open and notorious. Record owner didn’t know that part of this was under his property. Not the kind of property you can occupy notoriously. Ct also said no exclusivity b/c the record owner is still using the property above ground.

Front 317

How could policy have effected the Marengo case?

Back 317

If the policy is to punish a negligent record owner, that’s not what was happening here, which is why many think this was a good decision. If the policy behind the opinion were the reliance interest policy of AP, ct would have come out the other way.

Front 318

Which caes explain the AP requirement of Actual and Continuous Requirement in term of Tacking and Tolling?

Back 318

(1) Howard v. Kunto and (2) Ray v Beacon Hudson Mountain

Front 319

What was Howard v Kunto about?

Back 319

Everyone owned land one parcel over from what the possessed. Ds don’t want to move – claim adverse possession. These were primarily summer homes.

Front 320

In Howard, was seasonal occupancy enough to est continuity?

Back 320

Yes. What was sufficient for this property may not be sufficient for a piece of property in a different climate or year round resident or diff type of property. This was a summer home. This req is very fact specific in its application.

Front 321

Via Howard, is one able to tack the AP of successive APs together to satisfy the req years? (privity/continuity)

Back 321

Well, the problem is that the instrument furnishing the privity btw the first adverse occupier and the successors did not describe the property that was actually being transferred.

Front 322

In Howard, who did the ct rule for and why?

Back 322

However, the ct ruled for the Ds, ct felt that even though the deed at issue didn’t describe the land that was adversely possessed, didn’t matter. Still was general privity. Can’t be expected that every time you receive a title you’re supposed to go conduct your own independent survey.

Front 323

What was Ray v Beacon Hudson Mountain Corp about?

Back 323

Rose Ray leased on a piece of property and purchased a house on the property, but then she was forced to leave before the lease was up. Whole 156 acres bought by Beacon. Rays occupied the cottage for one month a year during the summer. They made substantial improvements to the property and paid taxes on it. Ps brought quiet title action saying they had adversely possessed the land for longer than the statutory period of 10 yrs and they owned it. Ct found for the Rays. Question was whether the AP was doing enough to possess the land to merit giving them title?
APs made installed utilities, secured the premises (one of the only houses that wasn’t abandoned in the area). So statute of limitations began to run when Rays entered, their seasonal occupation and specificity of AP was sufficient.

Front 324

Explain the AP concept of Tacking?

Back 324

Tacking: A record owner who does not object to two successive adverse occupiers who, taken together, occupy the land for 11 years (on 10 yr statute of limitations), loses their land. If AO 1 occupies for 6 yrs, then leaves and 1 yr later, AO 2 comes along and occupies for 4 more yrs. That record owner will win b/c wasn’t continuous. Tacking reqs are about reliance on the AP side.

Front 325

Re: AP, what's the deal w/government Land?

Back 325

The Fed govt never loses land. Whether land owned by the state or municipality will be immune from AP is more complicated, usually the govt will win. Govt treated diff b/c owns too much land to police it. But shouldn’t be b/c of policy of utilizing land.

Front 326

Re: AP, what are tolls and what do they do?

Back 326

Tolling: “tolls” the period of adverse possession. If period of 10 yrs is required, there may be certain circumstances under which they would suspend. Policy is that we aren’t punishing a record owner b/c minor can’t be negligent etc. Tolling statutes are more about the negligence, or lack thereof of the record owner. Protecting the record owners who are not in situations where they can be negligent, like people who are imprisoned, mentally challenged, etc.

Front 327

AP: How is the acquisition of non-possessory interests in land through adverse use is diff from other easements?

Back 327

The acquisition of non-possessory interests in land through adverse use is diff from other easements b/c not created through agreements. Has to meet reqs of AP but exclusivity. Implied easement.

Front 328

Conrnt Ests

What are Concurrent Estates?

Back 328

When 2+ people own the same interest in the same property at the same time.

Front 329

What are the 4 types of concurrent estates?

Back 329

1. Tenancy in Common, 2. Joint Tenancy, 3. Tenancy by the Entirety, and Community Property.

Front 330

What is a Tenancy in Common?

Back 330

Tenancy in Common => Neither can exclude the other from property. But percentages can be unequal. No right of survivorship.

Front 331

What is a Tenancy in Common favored by law?

Back 331

Favored by the law b/c don’t want to give all of the property to the surviving joint tenant and leave the decedent joint tenant heirs with no interest.

Front 332

What is a Joint Tenancy?

Back 332

Joint Tenancy says there is a right of survivorship (when one dies, the other takes his share and doesn’t go through probate (legal process of determining who gets what) – “poor man’s probate”). Equal interest in the property. Could convert the joint tenancy into the tenancy in common by conveying it to a third party – but this can be done without the knowledge of the other tenant. Possib of unilateral severance

Front 333

What are the 4 Unities Required in deciding if something is a Joint Tenancy?

Back 333

(1) Unity of time: all tenants must take their interest at the same time
(1a) The “straw man” requirement: If X wanted to create a joint tenancy with Y, she would have to convey the property to a straw man, then to X and Y as joint tenants, so that their interest would form at the same time.
(2) Unity of title: all tenants must take their interest from the same source
(3) Unity of interest: all tenants must have an equal interest in the property
(4) Unity of possession: all tenants must have a possessory interest in the whole.

Front 334

What is Tenancy by the Entirety?

Back 334

Tenancy by the Entirety: Only btw husband and wife – if divorced, becomes tenancy in common. Equal interest in property. Can’t be unilaterally severed (b/c one person in eyes of law), and there is a right of survivorship. Also, is protected – creditors after your spouse can’t use the property b/c its both of yours.

Front 335

What is Community Property?

Back 335

Community Property: Only 10 states, not IL. Only btw husband and wife. At least half must go to surviving spouse when one dies.

Front 336

What was Adamson v Adamson about? What did the ct hold?

Back 336

Margaret and Brian were married, and purchasing an apt building. According to the K, the sellers sold the apartment building to Brian, Margaret and Brian’s mother. Couple deeded their property to Brian’s father. Then they got divorced and the decree awarded Margaret the building. Brian’s mother conveyed all her interest to Brian’s father. Margaret brought suit. Trial ct found that she owned 2/3 of the interest and Brian’s father owned 1/3, and awarded her attorneys fees. Brians father appealed. This Ct held that this was a tenancy by the entirety and so Margaret has ½ equitable interest and Brian’s father has ½ equitable interest.

Front 337

What is the rule to be taken from Adamson v Adamson? What 2 things should you note?

Back 337

Rule: Unless expressed, tenancy in common will be presumed.

1. Instrument didn’t specify what kind of conveyance, but it does use the double “and,” and “Brian J. Adamson and Margaret Adamson (husband and wife) and Inez T Adamson.”

2. Note: Ex husband and father conspired together and through duress and coercion acted fraudulently in obtaining P’s signature to the deed and in transferring the equitable interest to the father.

Front 338

What was Margarite v Ewald about? What did the ct hold?

Back 338

Prop was conveyed to “John Ewald and Mary Ewald his wife and Joseph Ewald as tenants in common with the right of survivorship.” But tenants in common don’t get rights of survivorship. Mary died and left her interest to son Mario and husband. Husband died and left his whole estate to brother George. Joseph still alive. Mario contends that deed was tenancy in common, so no survivorship and he is owed 1/6 of the property. Joseph and George say that it was tenancy by its entirety so was survivorship, prop went to John and John gave it to George. Ct held it was a tenancy by its entirety so Mario got nothing.

Front 339

In Margarite, even though the deed said “tenants in common”, and tenancies in common don’t have a right to survivorship, what did the ct find?

Back 339

Even though the deed says “tenants in common”, tenancies in common don’t have a right to survivorship, therefore the deed cites a legal impossibility.

Front 340

In Margarite, what did the ct note there was a presumption of?

Back 340

Ct notes that there is a presumption of tenancy in common (no right to survivorship) unless clearly expressed. However, when property is placed in the names of a married couple, a tenancy by entireties is presumed – unless clear and convincing evidence to the contrary.

Front 341

In Margarite, what was specified?

Back 341

It was specified that they were H+W, so presume a tenancy by its entireties. Note the use of the double “and.”

Front 342

What was Kurpiel v Kurpiel about? What did the ct hold?

Back 342

Joseph (P) and Jenny (D) are husband and wife. Joseph used to be the sole owner of the property, but he conveyed it by deed to the three of them, “jointly and not as tenants in common.” Then Joseph sued for partition of the property, claiming joint tenancy, but wife and son claim that husband and wife have a tenancy by the entirety so it can’t be partitioned. This Ct holds they are joint tenants. No mention of the marital unit, no double “and.” Jointly is a non-descript enough term – have to be more specific.
--> Note: Joint tenants with right of survivorship and not as tenants in common would be perfect language b/c presumption is tenants in common.

Front 343

What was Weems v Frost National Bank of San Antonio about? What did the ct hold?

Back 343

A woman’s will gave ½ of her 1/3 interest in gas royalties to her four cousins “to be held jointly.” Weems (one of the cousins) sued saying that this created a joint tenancy. This court holds it is a tenancy in common -- is the word “jointly” isn’t enough to create a joint tenancy in this situation in the absence of words of survival. Family relationship more conducive to tenancy in common and presumption of tenancy in common.

Front 344

PP9: Conveyance that was made by Jack “to Bart and Rose Lee, and their son Ron Lee, jointly.” Ron dies and devises his interest in the property to his friend Josephine. Bart and Rose Lee want as much as possible. What is Issue One?

Back 344

Issue One => Whether the initial conveyance creates an interest of JT (+survivorship) or tenancy in common/ tenancy by its entirety (no survivorship – so some goes to Josephine).

Front 345

PP9: What are the arguements for Joint Ten?

Back 345

Args for JT = “jointly” – as seen in the Kurpiel case. But Josephine would point out that the Kurpiel conveyance expressly said that it was not a tenancy in common, here there is no such language.

Front 346

PP9: What are the arguements for Ten in Common? (2)

Back 346

Args for tenancy in common :
1. Tenancy in common is presumed.
2. Weems also had the word “jointly” and did not find JT bc of the circumstances: they were cousins.

Front 347

PP9: What is Issue Two?

Back 347

Issue Two = If not JT, figure out whether Bart and Rose are tenants in common or tenants by the entirety

Front 348

PP9: What will J get if its entirety? If it's in common? What will J's arguement be?

Back 348

--> If its entirety, J gets ½. If in common, J gets 1/3

1. Josephine will argue that Adamson and Margarite are persuasive for tenants by the entirety because of the express language
2. Although there is no express language saying that Bart and Rose were married, it does expressly indicate that Ron was their son, insinuating marriage of Bart and Rose?
3. Also the double and.

Front 349

PP9: For Issue Two, what will be the arguement for Tenancy in Common? (2)

Back 349

Args for tenancy in common =>
1. Tenancy in common is presumed when doesn’t explicitly say tenancy by its entirety.
2. Jack was a longtime friend of the family so the presumption may be that Jack wanted to keep it in the family. If lose on issue one and kid could devise his piece, the arg could be made that given Jack’s position to Bart and Rose, and b/c doesn’t say tenancy by the entirety, presumption could be that Jack wanted them to have the most amt of the land possible.

Front 350

IP: What's the difference btwn Rivalrous v Nonrivalrous?

Back 350

IP is non-rivalrous, unlike prop, meaning more than one person can share and enjoy IP at the same time.
Diff than real prop in which finite number of people can share/have interest in property.

Front 351

Why is being non-rivalous important in IP?

Back 351

Imp b/c comes back to right v access, specifically what balance ought the law to strike when it determines what law to privatize.

Front 352

What is Trademark?

Back 352

Trademark is a balance btw rights of trademark owners and others who want to use the same one.

Front 353

What is Copyright?

Back 353

Copyright is a balance btw protecting creators’ rights and insuring optimal access to copyrighted works.

Front 354

What does Patent Law aim to do?

Back 354

Patent law tries to reward creators for enriching public welfare without unduly sacrificing the interest of the public in enjoying access to their creations.

Front 355

What are the Two Main Purposes of Trademark Law?

Back 355

1. Protects consumers (society centered) from consumer confusion in the marketplace. Lets them know where it is coming from. Can’t be too much variability in product b/c otherwise trademark doesn’t mean anything.
2. It Protects producers’ (property centered) goodwill interests and investments in time, money etc.

Front 356

What two things should Trademarks aim to do?

Back 356

a. Must avoid confusion: When someone else uses that same signal in the same or related good or service, will have problems. The more the products and marks diverge, the less chance the consumers will be confused.
b. Must be descriptive & suggestive: can’t copyright “eggs”

Front 357

What do trademarks look like?

Back 357

-- R in the circle means it is a registered trademark with PTO.
- TM in a circle means nothing. Companies do that b/c they want to alert you that its their property but its really not.

Front 358

How long does Trademark protection last?

Back 358

2. Trademark protection lasts for 10 yrs and can be renewed – potentially indefinite (as long as the mark is used) or until abandoned or becomes generic. In order to renew, have to use the trademark.

Front 359

How long does Trademark protection last if it's being used a lot?

Back 359

Unlimited duration while being used, but gets lost if not used.

Front 360

Name (8) things that can be trademarked?

Back 360

a. Words (dasani, frappachino)
b. Slogans
c. Logos
d. Characters
e. Sounds – NBC chimes, Nokia phone ring, Harley vroom vroom
f. Colors – pink insulation
g. Numbers
h. Trade dress – packaging (usually what unfair competition lawsuits are made of – protected through unfair competition law) Not always regarded as distinctive, until consumers begin to associate this particular trade dress with this origin. Secondary meaning – over time, consumers will begin to assoc product with source.

Front 361

How can you register a TM if you're presently using the mark in interstate commerce? (2)

Back 361

(1) Apply to PTO - Applic includes fee, form, and drawing.
(2) Examiner reviews it to see if it qualifies under Lanham Act. If so, then publishes it in Official Gazette. Others have 30 days to oppose. If no one opposes, PTO registers mark in Principal Register and they can use symbol R in circle.

Front 362

If can demonstrate bona fide intent to use it in interstate commerce, what will happen to your TM? (2)

Back 362

(1) Won’t go into Registrer until the applicant shows that it has been used in commerce (has 36 months).
(2) No rights that attach to registration until using it. Can’t enjoin others from using it.

Front 363

If you register your mark with Supplemental Register (if your have mark in supp register), what can and can't you do?

Back 363

You (1) can use R in a circle. But you (2) can’t stop someone else from using it).

Front 364

What can registering w/ the Supplemental Register help do? (2)

Back 364

i. If a mark is capable of becoming distinctive, even if not yet.
ii. Can be mechanism of actual notice, can use federal cts to assert state-based rights, can transfer to Principal Register after 5 yrs (if have some distinctiveness).

Front 365

Why is federal trademark protection better than state trademark protection?

Back 365

Fed protection is the best and more efficient than state trademark protection. – State law allows marks to be registered by a state. Prof doesn’t see state protection as that meaningful. Unfair competition can be litigated under the federal law –not in the states b/c Landham Act has a provision (section 43a) allows you to sue in fed ct for unfair competition, even if don’t have federally registered trademark.

Front 366

What do trademarl examiners look for when deciding?

Back 366

a. In order for mark to be registered, trademark examiner wants to be persuaded that this is distinctive bc the product must be source indicative. The more distinctive, the more likely it will qualify as source indicative.

Front 367

What are the 5 elements of the Spectrum of Distinction?

Back 367

Spectrum of distinctiveness:
1. Generic (won’t be registered)
2. Descriptive
3. Suggestive (Kwall says good – can be registered immed and tells you a bit about product)
4. Arbitrary (strong but don’t say anything about product – Ex: Apple Computers)
5. Fanciful (strong but don’t say anything about product – word that no one knows)

Front 368

Just as you cannot trademark generic words, what else can you not trademark (in terms of functional products)?

Back 368

You cannot trademark product configuration that is functional (that by its very nature has to work a certain way).

Front 369

What are the (3) ways a Trademark must be used?

Back 369

TM must be used:
a. As a signal to consumer – this mark goes with this good
b. In commerce
c. In interstate commerce on a continual basis for trademark law. B/c of that Lanham Act provisions are based on commerce clause powers. You have to use your trademarks interstate

Front 370

What was the Jordache v Levi Strauss case about? What did the ct hold?

Back 370

In Jordache v Levi Strauss (501 v 101 jeans), the Ct utilizes Polaroid likelihood of confusion test and held that there while much of the factors went in Levi’s favor, there were issues of fact for a jury

Front 371

What are the first 4 of the (7) Factors of the “Polaroid” Factor Test? Explain each.

Back 371

(1) Strength of the mark – strong – arbitrary and fanciful. Indicates investment in the product, people know strong marks. The stronger the mark, the more protection it gets to protect the investment.
(2) Degree of similarity – Levi is trying to protect the 501 and the cts are looking at the surrounding material on all of the marks – cts typically look at the whole context of the marks. Here there was a question of material fact.
(3) Proximity of products and likelihood that Levi will bridge the gap – cousin factors. Diff is proximity looks at the products as is, and bridging the gap looks at the likelihood that orig trademark owner would extend. Here, these create issues of fact.
(4) Actual confusion – std in trademark law is likelihood, not actual. But virtually all circuits embrace actual confusion as part of the test.

Front 372

What are the last 3 of the (7) Factors of the “Polaroid” Factor Test? Explain each

Back 372

(5) Good faith – Jordache good faith? Question of fact. Some cts say that intentional copying gives rise to a showing of secondary meaning, some put a high premium on it. Prof disagrees with the cts that conclude that showing of intentional copying means likelihood of confusion.
(6) Quality of the products – both make quality jeans – looks even more like they came from the same source. This can go either way – could also be better that they’re high quality cause at least not negative misrepresentation.
(7) Consumer sophistication – some products are sophisticated (ex you hear is diet foods) and same can be said of clothing – you know what you’re looking for. This ct says the more sophisticated consumer, the less likely confusion. But some cts come to opp conclusion

Front 373

Why would a ct protect a mark which was strong?

Back 373

Levi’s mark was very strong. But should a strong mark should get more protection? One would think that the stronger the mark, the less likely consumers would be confused if presented with something that’s close but not the same, b/c they are familiar with the mark. But the reason may be to protect the investment that the company has made in making the mark so strong.

Front 374

What was Packman v Chicago Tribune about? Who did the ct find for?

Back 374

Packman’s registered “the joy of six” for several uses, in connection with entertainment services in connection to ball and football games. She started printing the mark on tshirts and hats. Tribune sportswriters using phrase to describe possible Bulls win. Packmans sent letter saying it was ok for Trib to use it. Bulls won and Trib printed front page “the joy of six”. Then Trib printed front page of paper with phrase on tshirts etc and sold it. Packmans filed suit for trademark infringement. Ct found for Trib.

Front 375

How could the Chicago Tribune use the Fair Use Defense?

Back 375

Chicago Tribune has to show that this is being used as a descriptive term and using it fairly, not trying to appropriate the mark.

Front 376

What (3) things did the Chicago Trib have to show to utilize the Fair Use Defense?

Back 376

(1) Must show it used the joy of six in a non-trademark use
--> Wasn’t identifying itself as joy of six. Instead, masthead ID’d them as the source. Joy of six is a phrase that is used a lot.
(2) The phrase is descriptive of its goods and services
--> It described a newsworthy event and is commonly used and Packman can’t appropriate it. Packman had no secondary meaning either.
(3) It used the phrase fairly and in good faith
--> Yes – did what they always did.

Front 377

What does the Lanham Act say about mark abandonment?

Back 377

Lanham Act: A mark is abandoned when its use was discontinued with intent not to resume. May be inferred from circumstances. Nonuse for 3 years is prima facie abandonment. Once abandoned, in public domain.

Front 378

What was Silverman v CBS about? Why wasn’t this CBS's use enough?

Back 378

Amos and Andy Characters – CBS stopped using them b/c racist but maintained trademark on them – then someone else sought to use them for play and said they’re public domain. Silverman said they’re abandoned. Can use circumstantial evidence to show that there is no intent to resume use. While CBS was still out there bringing infringement challenges, renewing trademark, the Ct held that CBS had abandoned the mark.
--> B/c CBS isn’t using trademarks in a capacity to rekindle with public an association btw Amos and Andy.

Front 379

What does the constitution say about patent and copyright law?

Back 379

Constitutional auth for patent and copyright law comes from the same clause. Art 1, §8. Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries

Front 380

What is meant by "Copyright law is utilitarian?"

Back 380

Copyright law is utilitarian => property exists to spur production. Gives limited monopoly to creator to spur production.

Front 381

What Two things does the current governing statute, 1976 Copyright Act, state?

Back 381

(1) Originality requirement = independent creation + a modicum of creativity.
--> In copyright law, if something is too useful, it’s functional and not expressive and doesn’t get protected.
(2) You can’t reproduce, distribute, perform, display, or produce derivative works when someone else owns copyright. These aren’t ownership rights – are separate. These rights have to do with $$ and creating market for culture. So still utilitarian perspective.

Front 382

What are some opposing issues of the 1st Amendmt v. Copyright law?

Back 382

The 1st Amend poses big problems in copyright law. Copyright law proscribes people from expressing themselves if the subject matter they are using is within the scope of someone else’s copyright. Big tension btw copyright v public access issue. First Amendment demands freedom to appropriate regardless of copyright law, and copyright law restrains.

Front 383

Is registering your copyrighted work manditory?

Back 383

When you have a copyrighted work, its desirable but not mandatory to register your work. No registration requirement - once you create orig work, you have protection. But it is good to register, b/c have presumption of validity, can’t really sue for infringement if you don’t register.

Front 384

Is copyright registrn at a high std?

Back 384

No. The Registrn process is very different. Not a high std. But in theory the protection is less complete than patent protection.

Front 385

* In order for something to be copyright protectible, what must it be?
Name 4 things that are not copyright protectable.

Back 385

To be protectable, a thing has to be a fixed medium.
--> What is NOT protectable by copyright law?
a. Class lecture (no notes, no fixation, no script),
b. A baseball game itself (not a work of authorship - but a recording would be),
c. Improv (no, but if he had a script the script would be),
d. Street performers (no fixation).

Front 386

How long does copyright protection last?

Back 386

Copyright pro lasts for life of author + 70 years.
-- People protest this.
-- Copyright law has more loopholes, but lasts for a really long time. If your perspective is that people should be free to use expression and not have it privatized, becomes an issue.

Front 387

How long does patent protection last?

Back 387

Patent law is 20 years only. But during those 20 years, no one can do anything with that patent

Front 388

What was the Feist v Rural Telephone Service case about?
Who did the ct find for?

Back 388

Originality Requirement: Rural was a phone co w/directories. Issued them for free but made $ off advertising in yellow pages. Feist is a publishing co that makes area wide telephone directories. B/c Feist wasn’t a service provider, couldn’t get info easily for white pages. Rural refused to give them info but Feist used it anyway, and final book had 1300 identical listings. Rural sued for cop. infring. Sup Ct found for Feist – not infringement.

Front 389

To establish copyright infringement, what two elements must be proven?

Back 389

(1) Ownership of a valid copyright (already est, though the mere fact that a work is copyrighted doesn’t mean that every element of the work is protected)
(2) Copying of constituent elements of the work that are original (infringment).

Front 390

What is the formula for originality?

Back 390

Originality = independent creation + a modicum of creativity

Front 391

In Feist, why was "originality" not found? (3)

Back 391

1. Facts are not copyrightable but compilations can be, depending on originality – the raw data isn’t, but were the facts selected and arranged in an original way? (Std is low but it does exist)
2. Didn’t satisfy min const standards for protection – they are typical. Just listed alphabetically. Void of any creativity. Selection lacks modicum of creativity too.
3. Because Rural’s white pages lack the requisite originality, Feist’s use of the listings cannot constitute infringement.

Front 392

Where does the authority for the originality reqmt come from?

Back 392

1976 Act is governing Act. But ct says the auth comes from the Constitution (even though doesn’t explicitly say). Congress could not come along and say that phone book listings are copyrightable b/c cts say that originality is constitutional requirement.

Front 393

If I had an idea of doing a principal problem book , would I be able to copyright it?

Back 393

No, the idea of doing a principal problem book is not copyrightable – no ideas are. However, principal problems contain copyrightable expression and notes afterwards b/c they are the author’s expression. The editing of the cases – Philwold case had a long discussion of running covenants but authors took that out b/c using the case for a chapter about defenses. Can’t copyright that if it’s the only way to teach that case in defense chapter. But to the extent that editorial choices to involve creativity and originality, that would suggest copyrightable. As for selection of cases, if someone uses your same 100 cases in the same order, that’s a problem. But if its just a chapter and include the same cases, depends on whether or not the cases are the forefront cases. The more that’s taken, the more of an issue.

Front 394

What was CCNV v Reid about?

Back 394

A work for Hire case: Reid is indep artist, CCNV is a non-profit org – not surprising that copyright wasn’t mentioned. So when conflict arose (Reid felt CCNV wasn’t appropriately caring for the sculpture, Reid wouldn’t give it back), ct had to deal with question of who was copyright owner. CCNV was owner of sculpture, but who had the copyright?

Front 395

How do we determine whether something is a WORK FOR HIRE? (2 ways).
--> name the 7 things should be a part of.

Back 395

We look in The Act, which says it is, if:
1. §101(1) - If prepared by employee in scope of employment
2. §101(20) - If work was specially ordered or commissioned for use as a contribution to a collective work, as a part of

a. Motion picture or other audiovisual
b. Translation
c. Supp work
d. Compilation
e. Instructional text
f. Test/answer material
g. Atlas

Front 396

Asside from being enumerated in the Act, how else could a WFH be determeined/creted?

Back 396

IF THE PARTIES EXPRESSLY AGREED in instrument that WFH.

Front 397

In CCNV, how did we know it wasn't a Work for Hire under Rule 2?

Back 397

We knew it wasn’t #2 b/c no express thing in written agreement. So question becomes whether or not Reid was employee under §101 of Copyright Act?

Front 398

What are the (13) Agency Factors for the balancing test?

Back 398

Agency Factor Test:
a. Right to control manner/means
b. Skill req
c. Source of instrumentalities and tools
d. Location of work
e. Duration of relationship
f. Whether hiring party has the right to assign add projects
g. Extent of the hired party’s discretion over when/how long to work
h. Method of payment
i. Can hired party hire assistants
j. Is work part of reg biz of hiring employee?
k. Is hiring party in biz?
l. Provision of employee benefits
m. Tax treatment of hired party.

Front 399

Which of the Agency Factor Tests is the most important in Reid?

Back 399

In Reid, the most imp = right to control – if Reid was employee, would have less control. Ct noted that although CCNV gave statue specifications, all other factors weighed against control/employment relationship.

Front 400

In the Reid case, what was the third possibilty of how the copyright could be the owner?

Back 400

joint authorship of sculpture. Joint Authorship: We’ve seen this concept before in tenancy in common, which is the basis for joint authorship.

Front 401

What is the issue w/ Joint Authorship?

Back 401

The Issue with joint authorship => misperception that it has to be 50/50 (sounds like would have come out of joint tenancy, but it actually came out of tenancy in common)
--> But there is almost always a dominant author and a non-dominant author, so doesn’t really have to be 50/50. But cts and commentators get this wrong.

Front 402

When can ppl be Joint Authors?

Back 402

According to statute, may be joint authors if they intended to merge their contributions = prepared the work “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” §101.

Front 403

In the Reid case, could it be a Joint Authorship? (2)

Back 403

(1) In this case could be JA b/c CCNVs idea and they made pedestal and both parties had input in design and material.
(2) However, note that the CCNV ct actually applied the test wrong and required that they intended to BE JOINT AUTHORS. This is wrong interp of statute.

Front 404

Hypo: Ct decides Reid is the copyright owner. Can CCNV take the statue on tour?

Back 404

109c gives the owner the right to display the work. Display right is qualified so someone who physically owns the object can display it. Even though CCNV doesn’t own copyright, can still display. Can take it on a tour, but if they charge for their tour, Reid gets all the profits under copyright law.

Front 405

What happened on remand in the Reid case?

Back 405

On remand, the dist ct came up with an interesting assessment – Reid is sole author with sole ownership rights regarding any 3D reproductions. But Ct also ordered that CCNV was sole owner of sculpture, and both parties are co-owners of the copyrights that involve 2 dimensional reproductions.

Front 406

What is the Merger Doctrine?

Back 406

Merger Doctrine => When an author’s expression of an idea is closely intertwined with the idea itself, the expression has merged with the idea and is therefore uncopyrightable.
--> This doctrine and the Fair Use defense work to make copyright law consistent with the 1st Amendment.

Front 407

What is Religious Technology Center v Lerma about?

What did the ct find?

Back 407

Lerma acquired and some Scientology texts from public court documents and published them on the Internet. Basically a detailed program for how to become clear of the alien spirits. RTC (P) protects the texts and aggressively policing and breaches in security or unauthorized disclosures that might occur, sued Lerma for copyright infring.
--> Ct granted summary judgment for RTC – this was copyright infringement. Awarded $2500 in damages.

Front 408

What did the ct in Religious Technology Center v Lerma hold re: merger doctrine?

Back 408

The Ct held here that merger doctrine didn’t apply – ideas can be discussed indep of documents.

Front 409

When using Fair Use Defense as a defense:
- what type of defense is it?
- who has the burden?

Back 409

When using Fair Use Defense as a defense: Affirm defense, D has burden

Front 410

What first 2 of the 4 things are assessed when deciding the propriety of the Fair Use Doctrine?

Back 410

a. Purpose and character of the use – trying to use it commercially? If D is, that will be strike against D. If using it for scholarly or research purposes, will be pro-D. Ct says this is non-commercial use but that’s not dispositive. D tries to argue that his work falls under news reporting and ct rejects that analogy.

b. Nature of copyrighted work – creative or factual? Published or unpublished? The law generally recognizes a greater need to disseminate factual works that works of fiction or fantasy. Publication Status: The scope of fair use is narrower for unpublished works b/c want to give author right to first publication and the more disseminated it is, not taking away something from the author necessarily. In this case, factual and unpublished. Goes against D.

Front 411

What the last 2 of the 4 things that are assessed when deciding the propriety of the Fair Use Doctrine?

Back 411

c. Amt and Substantiality of Copying: Quantitative and qualitative – is it a lot or the heart of the work. Mention that qualitative may be more imp. Sometimes hard to get on what the heart of the work is. About $$ too – will Ds use eat up the market share? In this case, Ct can’t tell if this is the heart of the work but doesn’t have to b/c it is definitely a substantial amt. Goes against D.

d. Effect on the Market of the Copyrighted Work – hard to measure what the market is for Scientology. Would they have a lot of defectors? Should that be relevant? Lots of questions. To negate fair use, RTC had to show that if the use became widespread it would adversely affect the potential market for the copyrighted work…On balance, ct found this favored Lermer just a bit.

Front 412

When is something copyrightable? (2)

Back 412

1. P has to show ownership of valid copyright
2. Copyright contained orig elements of work

--> Remember: Originality = indep creation + modicum of creativity (low std)

Front 413

What does the Right of publicity protect at its core?

- Why do ppl tolerate it?

Back 413

Right of publicity at its core protects against unauthorized commercial appropriation of a person’s identity.
--> Many can tolerate this doctrine despite the 1st Amendment when someone’s name/face is being used without their permission to market commercial goods

Front 414

What are the (5) Policies behind right of publicity?

Back 414

1. Back to Moore v Regents – excised spleen case. Said spleen was his property. P was arguing that he had control over it and could alienate others from it.
--> Right of publicity is analogous b/c dealing with other “parts of you”– persona, name, face, slogan, gestures
--> Questionable ones: voice, information about you, etc.
2. Unjust enrichment – if you haven’t been paid, that person using your likeness is being unjustly enriched.
3. Natural rights – protect the fruits of someone’s investment in themselves and their persona.
4. Consumer confusion – doctrine in classic formulation is commercial.
5. Personal dignity aspect – dignity-based harms (big problem). ALTHOUGH, most cases under this doctrine are about $$, not public exposure.

Front 415

Re: celebrities, what's the princple concern w/ right of publicity?

Back 415

Problem wasn’t that their privacy was being invaded, its that they weren’t being compensated for the use of their celebrity, which had a commercial value.

Front 416

Most ppl w/ right of publicity concerns are seeking what?

Back 416

Whereas typical publicity P is complaining about $, there are others who are concerned with the damage to their image/dignity. Prevents commercial appropriation of a persona, but what creeps in are concerns of human dignity.

Front 417

What was the outcome of the Elvis case?

Back 417

In Elvis Presley Int’l Mem Foundtion v Elvis Presley Memorial Foundation, the Ct held that yes, publicity right descends to heirs and assigns of the celebrity.

Front 418

What are the first 4 of the (8) Rationales for recognizing that right of publicity is descendible?

Back 418

Rationale for recognizing that right of publicity is descendible:

1. An individual’s right of testamentary distribution is an essential right that survives death.

2. It is good policy to prevent unjust enrichment from the use of a celebrity’s likeness, even after death.

3. Celebrities have the expectation that they are creating a valuable asset that will benefit their heirs after their death when they allow the commercial use of their likeness’.
4. Recognizes the value of the contractual rights already in existence for use of the likeness and name. This interest stems from the exclusivity of the use of the likeness.

Front 419

What are the last 4 of the (8) Rationales for recognizing that right of publicity is descendible?

Back 419

5. Prevents fraudulent advertising. It is illegal to falsely claim a living celebrity endorses a product. This should extend to dead celebrities also.

6. Also consistent with unfair competition policy regarding deceptively similar names of corporations.

7. Also, although this ct’s decision is based on CL right to publicity, also notes that Tenn Code says indiv’s right in the use of his name, likeness, etc is descendible.

8. Incentive based theory for right of publicity – has to recognize as prop right b/c incentive to create b/c expect that their celebrity will benefit their heirs. BUT how much incentive is there really needed? Prof says that’s BS

Front 420

What are the (2) Class criticisms of right of publicity?

Back 420

The (2) Class criticisms of right of publicity:

1. Don’t need it for celeb incentive
2. Don’t need it to protect from consumer deception

Front 421

What could be argued against the right of publicity criticisms?

Back 421

There are certain kinds of damage to a persona where no other way to deal (i.e: dignity violations)

Front 422

What was the main question in the Vanna White v. Samsung case?
--> What did Kozinski say in the dissent re: the main question?

Back 422

--> How broad should the right of publicity protection be?
--> Kozinski writes this dissent and says the majority made the wrong decision, created bad law and broadened the right of publicity way too much.
Whole point of IP is that these laws have limitations to allow for right v access balances. This is so public can use something created by someone else so there’s a free environment where “creative genius can flourish.” The panel’s new law has none of these limitations. No limited characteristics like name/likeness/voice, now vague claims of “appropriation of identity” are protected for robot with wig and dress like what V. White wore. Public will be robbed of parody, which is protected by 1st Amendment. Doesn’t matter that its commercial speech.

Front 423

Principal Problem 11:

Is there a violation of Sterling’s publicity by women’s group making mean t-shirt with caric of face and bad (true) info, is it actionable, and should 1st Amend freedom of speech trump violation of publicity right?

Back 423

1. Comparing this case to the Vanna White case, principal problem is stronger case for inappropriate appropriateion b/c the caricature is a likeness of his face, whereas Vanna’s thing was just a robot in a wig. Information is actually about him and reinforces the caricature. But its factual information.

Front 424

PP 11: even if there is actionable violation on basis of caricature, does the 1st Amendment trump the right of publicity?

Back 424

1st amendment operates diff for hybrid uses (commercial + communicative message). Law will be viewed very suspiciously by a ct – the way cts typically address the nature of the conflict btw right of publicity and 1st amendment is balancing test – balance has to be made carefully by a court.

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PP 11: Is there a dignity based harm?

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Sterling wouldn’t want himself portrayed in that right, so yes. Virtually every parody that comes up involves something offensive though.

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PP 11: What do we look at when trying to balance dignity based harm and the 1st Amendment issue?

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Is there compelled speech?
--Here, no.
Is there a risk of public linkage?
-- Here, No.
So even if sterling has grievances, it prob wouldn’t be severe enough to trump the 1st ame interest at stake on the part of the women’s group. They would probably would and should win.