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SPRING 2008 PROPERTY OUTLINEPROFESSOR KEN KRISTIL

I. INTRODUCTION AND OVERVIEW OF PROPERTY LAW

a. 5 Elements of Copyright i. Original

1. “Minimum levels of creativity & originality” (intellectual effort)2. translation to Spanish will do; Feist case directory with ratings

ii. Work of authorship (literary; musical; pictorial; choregraphic; movie; architectural)

iii. Fixed1. Class lectures not pod cast can

iv. Tangible medium of expressionv. Which can be perceived, reproduced or otherwise communicated

b. 8 Exclusions to Copyright Protection 1. Ideas Procedure Process Principle2. System MOO Concept Discovery

c. 4 Elements to Trademark i. Word, name, symbol or combination thereof (shape coke bottle, color dry

cleaning)1. Qualitex held color can be trademark as long not functional.

ii. Used in commerce or intend to use in commerceiii. Identify and distinguish goods sold by othersiv. To indicate the source of the goods

d. General Rule Distinctiveness i. An identifying mark is distinctive and capable of trademark protection if it is

either1. Inherently distinctive: unique, immediately distinguishes

product/service from others;2. Acquired secondary meaning: consumers start to associate mark with

one company as to everyone else.

e. 5 Categories of distinctiveness i. Generic: (aspirin) Refers to category/class; Not registrable Never Inherently

Distinctiveii. Descriptive: (Nice N Soft or Nailz) M/b registrable; not inherently distinctive

so needs 2nd meaning iii. Suggestive: (cooper tone) suggests identity: Inherently distinctive Always

registrableiv. Arbitrary(Apple Computer) no connection to prod: Inherently distinctive

Always registrablev. Fanciful: (Exxon) make up word: Inherently distinctive Always registrable

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f. Trademark Registration i. Arise by use; however there are 3 exceptions to registering trademark

1. So resembles a mark that it is likely to cause confusion, mistake or deceive;

2. Merely descriptive (Zipper or Nails)3. Functional (necessary for operation red fire equipment)4. But you can register it if it becomes distinctive thru 5 years continous

use.

g. What someone has to do to infringe on trademark i. Use of reproduction, counterfeit, copy colorable imitation

ii. Use mark in connection with packaging, advertising

h. Remedies for trademark infringement i. Injunctive relief and damages in profit if used intent to cause likelihood of

confusion

i. Trade Dress i. Overall appearance of product v. trademark one specific product.

ii. Packaging business. Distinguishing goods or service of business from others.

j. Unfair Competition i. Cannot use trademark, description or words cannot use things that would

misrepresent your product or someone else’s product. If u do so, you are liable for penalties under act.

II. PRINCIPLES OF PERSONAL PROPERTY LAW a. Possession

i. 5 Types Possession:ii. Abandoned – 2 flavors

1. Intentional relinquishment –throw it away; “I don’t want this anymore” (F-L-ROW)

2. Involuntary relinquishment – left w/o hope of obtaining it beer ship (O-F-L-ROW)

iii. Lost – owner has involuntary parted carelessness (O-F-L-ROW)1. Court presumes that property is lost if cannot be determined2. Armory found the jewel and reduced it to possession he had superior

interest to everyone except true rightful owner.iv. Mislaid – intentionally put into place forgotten (O--L-F-ROW)

1. Carefully bundled and found inside receptable2. Place where property found important (Benjamin wing plane)3. Presumed to have been left in custody of landowner; true owner return

v. Treasure Trove – type of mislaid property; buried or hidden treasure form of gold coins cash; owner unknown; “carries with it thought of antiquity”. (O-F-L-ROW)

vi. Fugacious property: not yet owned property; no one claimed1. wild life, intentionally abandoned property, oil, gas, baseball2. Rule of capture – a property interest in a fugacious thing is gained by

the actual possession/capture of the thing.

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a. 2 Variationsi. Partial or probable capture: possession does not

determine ownership. Whaling case.ii. Equitable Division : resolve competing claims.

1. Rule : significant but incomplete steps to achieve possession and is unlawfully interrupted, actor has legally cognizable pre-possessory interest in property.

b. Bailment i. Definition: Contracted (implicit or explicit) delivery of property for some

purpose and after that purpose is filled, the property is redelivered to the bailor, or otherwise dealt with according to bailors directions or kept until bailor reclaims it.

1. Bailor: person who gives property Bailee: person who gets the property

ii. 2 Flavors Bailment1. Gratuitous Bailment : keep it for free; benefits bailor only; liability is

less than bailee for hire, bailee must exercise slight diligence std care2. Bailment for hire : both receive benefit; bailee must exercise

reasonable care stda. Constructive bailment – (Shamrock hotel purse) court

constructed bailment finding implied agreement because nature of relationship and implied delivery and acceptance of purse. Courts willing to find bailment exist in order to protect property; a landowner or finder is a bailee taking care of true owner.

iii. Proof of Liability: Rebuttable Presumption of Negligence by Bailee1. It is presumed that bailee is negligent if bailor establishes a prima facie

case for bailment which is 4 Prima Facie Case for Bailment.a. Express or implied agreemt bt bailor & bailee to create

bailmentb. Delivery of property to bailee in good condition

i. (better condition when returned; damages = difference in value)

c. Bailee’s acceptance of propertyd. Bailee’s failure to return property OR returns it damaged

condition2. Look evidence; large parking lots no agreement; security

c. 4 Transfers of Personal Property i. #1 Unauthorized Transfers to Good Faith Purchasers

1. General Rule: Purchaser of goods gets all title seller had or had power to transfer.

2. General Rule: Once void always void

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3. Void title is when transferor lacks authority to transfer, does not have title (Thief steals piece sells it to unsuspecting buyer, buyer has void title and bears loss.)

4. Exception to rule of void title by an unauthorized sellera. Voidable title: Seller can pass better title if certain conditions

meti. If conditions met, title can become good and true owner

loses against buyerii. If conditions not met, once void always void applies.

5. 3 Requirements Voidable title UCC 2-2403: a. Entrustment – delivery of goods by true owner OR true

owner’s acquiescence in the retention of possession; b. To a merchant who deals in goods of that kindc. Sale to good faith purchaser for value (BFP)

i. If purchaser is individual “honesty in fact” standard: including legitimate intention to buy and pay market value of goods

ii. If purchaser is merchant: Requires honesty in fact and complies with commercially reasonably requirements in industry

iii. A+B creates voidable title & A+B+C coverts it to good title.

iv. If purchaser is BFP and is buying something from a merchant that has voidable title, than that purchase makes it good so that purchaser has good title and can transfer good title and original owner has to seek recourse from others.

d. Entrustment Casesi. True owner must consent to the transfer of goods to the

person from who the good faith purchaser bought them. Kenyon: salvation army messed up sold painting; court said buyer had no title.

e. Purchaser cannot take good title from a thief. Brown University.

ii. #2 Transfer of Personal Property thru Security Interests : 1. Creditor can collect debt by obtaining interest in property, not full title,

which permits the seizure or repossession of property to satisfy debt.2. Perfection of a security interest

a. Requires a mandatory filing of financing statements; if not, cannot enforce it against subsequent purchasers.

iii. #3 (5) Remedies for Intereference of Personal Property 1. Trepass

a. direct injury chattel. P has right of possession & D willfully interferes w right.

b. E.g. Picasso painting cut up intentionally.2. Trespass on case

a. indirect injury to chattel (negligence)b. E.g. take Picasso leave back door rain blows damages it;

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3. Replevina. Action return property. About possession of property

4. Trover or Conversion: a. wrongful exercise of control of personal property. b. E.g. P loses property D finds it and refuses to give it back on

demand. c. JURISDICTIONS SPLIT:: Most jurisdiction adopt the rule that

intangible property may be converted only if you can evidence it with something that is tangible. Eg. bank account & statement.

d. Other jurisdictions, like CA do not require a strict interpretation and say you do not need merger into a document. Kremer case.

5. Trespass to chattel: a. interference with use of property that does not involve

wrongful exercise which results in injury to the chattel.b. E.g. AOL & EBAY did not control servers but did enough to

interfere with true owners use of servers.

iv. #4 Transfer of Personal Property:Rights In the Human Persona 1. 4 Elements of Right of Publicity

a. D used P’ identityb. Appropriation of name or likeness to D’s advantage

i. White court says celebrity has interest to protect it from unauthorized comm.. exploitations

c. Lack of consentd. Injury

2. Property Rights in Human Cells a. No. Policy arguments, statutes eliminates many rights

associated with private property ownership.

III. PRINCIPLES OF REAL PROPERTY OWNERSHIP: Creation of Property Interests by Gifts, Purchase & Adverse Possession

a. Create Property Interest Through Giftsi. Intervivos Gifts 3 Elements (DDA)

1. Donative intent; a. part of title bestow on done complete & irrevocable title

2. Delivery of gift: a. subject matter; part with all future and present dominion; often

objective evidence of donative intent3. Acceptance of gift by done:

a. done bears burden that gift of occurredb. Many states you prove existence of gift by clear & convincing

evidence

ii. Gift Causal Mortis 2 Elements (made in contemplation of death) 1. Making gift in anticipation of imminent death.2. Difference between incurable cancer vs. fear of death from flying

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iii. 2 Difference between Intervivos Gifts & Causal Mortis 1. Gift causal Mortis is revocable by donor until time of death2. If person does not die because of anticipation death it is revoked

iv. Definitions: Devise: Gifts will real property OR Bequest: Gift of will personal property OR Intestate: no will

b. Create Property Interests Through Purchase/Contracti. Legal title : bare title held by owner/seller until closing

ii. Equitable title : beneficial ownership held by buyer until closingiii. After settlement the title merges to buyer to have both.iv. Case: Calvin: gets back money paid for taxes; he had legal title.

c. Create Property Interest Through Adverse Possessioni. Possession for a statutory prescribed pd. of time can ripen into titleii. 2 Flavors of Adverse Possession

1. Without color of titlea. Satisfies 5 Elements of Adverse Possession.

2. With color of titlea. A deed or other instrument of conveyance that purports to

convey title to the land in question.b. 2 Effects

i. Some states the limitations period of adverse possession based on color of title is shorter than adverse possession w/out color title

ii. Permits an adverse possessor to constructively possess an entire parcel in land even though he actually possess less. Idea is law will recognize B’s claim because true

owner failed to discover his interest.

iii. 5 Elements of Adverse Possession (AEHOC) 1. Actual possession of property

a. Do not have to be physically present all the time. Actual presence on land

2. Exclusive possessiona. Only adverse possession should have exclusive dominion and

control.3. Hostile

a. Without true owners permission. b. “legally adverse to true owner of property”c. Totman case – not present in family situations or situations

were it appears owner consents to property. 4. Open & Notorious

a. Visible and not secretive/surreptitiousb. Puts true owner on noticec. Davis v. Park grazing animals not enough but fence is open &

notorious enough5. Continuous for limitations period

a. no interruptions in the adverse posessor’s possession of RE

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b. Tacking – an adverse possessor may tack on to his time with the land time from his predecessors as long as there is privity.

iv. Arguments to be made on adverse possession1. The rightful owner is “sleeping on his rights”2. Distinguish between trespass action but not having exclusive

possession

d. 2 Mechanism available for adverse possession parties i. True owner bring action to eject them.

ii. Adverse possessor bring suit to quiet title in his name.

e. Concurrent Multiple Ownership/Forms of Deeds i. Fee Simple Absolute FSA

1. “To A and his heirs”2. A has full and complete title; A’s heirs gets nothing.

ii. Tenancy in Common: 1. “To X and Y and their heirs.”

2. 6 Rights Tenancy in Common (UEUWSH)a. Each owns undivided interest in feeb. Each can enter onto and avoid exclusion from land. c. Each can use the land (but must account to others) d. Each cannot commit waste (diminution value of land or fail to

realize full value)e. Each can sell-buyer gets what seller had ½ interest undivided

interest T/Cf. When one dies, heirs get decedent’s interest as T/C

3. Interest can be inherited or devised by will

4. When multiple ownership, law presumes tenancy in common

5. 2 Mechanism to resolve tenancy in common disputesa. Partition property; separate itb. Sale

6. Chinn case: no waste b/c niece fixing house, increase value; and nothing to account.

iii. Joint Tenancy w RT of Survivorship 1. “To X and Y as joint tenants with joint survivorship”

2. 6 Rights Joint Tenancy (UEUWDS) First 4 same different in ability to sell and devise

a. Each owns undivided interest in feeb. Each can enter onto and avoid exclusion from land. c. Each can use the land (but must account to others) d. Each cannot commit waste (diminution value of land or fail to

realize full value)

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e. *Sale: If joint tenant sells his interest, joint tenancy is destroyed and becomes tenancy in common so the purchaser has undivided interest as tenant in common.

f. *When one dies, heirs get nothing, all goes to surviving tenant

3. Key features of joint tenancy: 4 Unities (TTIP)a. Time: joint tenants obtained interest at same timeb. Title: through same title docc. Interest: each joint tenant equal interest; cannot have 1/3 and

other 2/3d. Possession: each joint tenant has same right of possession

*Break one and the joint tenancy is destroyed becomes Tenancy in Common

4. Estate of Mitchell case, h/w joint tenants, but husband severed interest by writing deed, broke unity of time destroying joint tenancy and converting it to tenancy in common so interest passed to his son/heirs.

iv. Tenancy by the Entirety 1. “To X and Y as Tenants by the Entirety” (like joint tenancy w right of

survivorship)2. Each owns undivided interest in fee3. Each can enter onto and avoid exclusion from land. 4. Each can use the land (but must account to others) 5. Each cannot commit waste (diminution value of land or fail to realize

full value)6. *Only between husband and wife7. *Only severed by divorce which converts it to tenancy in common8. *Sale: each tenant can sell interest but buyer gets ½ undivided interest

in a tenancy by entirety so if tenant that bought from dies first; buyer interest is loss because it automatically goes to surviving spouse. You don’t see too much because right of survivorship. Buyer takes risk that seller will survivor. Decedent’s heirs gets nothing

9. *Death: So when one dies because right of survivorship if one tenant dies, the other tenant gets all interest; decedent’s heirs gets nothing.

f. 3 Types of Deeds i. General warranty deed: grantee promise to protect against any and all defects

ii. Special-Limited: grantor protects only claims caused by him;iii. Quit-claim; grantor makes no warranty about title

g. Marital Propertyi. Common law approach (41 states) property owed separately and converted

into marital property; put into bucket1. 3 Doctrines of What constitutes marital property

a. All property owned by either spouse whenever and however acquired

b. Property acquired during marriage

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c. Only property acquired from income earned during the marriage (not by gift, devise, or descent)

2. Division under common law approach a. Equitable distribution principle: courts will use equity or

fairness in distributing; discretion to adjust % of distribution.

ii. Community Property approach : starts with presumption that everything is community property; so you have to take out to separate it.

1. 2 Doctrinesa. Any and all property held at time divorce, presumed to be

community propertyb. If you have something separate and it gets commingled so you

cannot identify it, it is community propertyc. Avoid the commingling doctrine if you can trace proceeds to

show the property was clearly separate and trace source.2. Division under community property approach ?

a. 50/50.

iii. Professional Degrees1. NY rule: professional degree and earning capacity in bucket; courts

will consider earning power of degree2. NJ rule: professional degree is not; but wife has claim for

reimbursement.

h. Trustsi. Form of divided ownership “to trustee in trust for the use and benefit of

(beneficiary”)

ii. 3 people to start1. Trustor/settler: person who created the trust2. Trustee: (holds legal title) to material in trust3. Beneficiary: gets benefit (holds equitable title)

iii. 6 Fiduciary Duties Owed by Trustee1. Duty of loyalty2. Duty to avoid self dealing3. Duty of reasonable, prudent investment4. Duty to protect and preserve res (deal w/normal detoriation)5. Duty to avoid commingling trust properties6. Duty to account to the beneficiary

iv. Estate of Rothko: shady executors.

i. Posessory Estates and Future Interests

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IV. Landlord & Tenant Law a. 6 Types of Tenancies

i. Estate of Years (Fixed Term tenancy)1. Tenancy of definite length; 2. There is an end date3. Usually lease; notice is not necessary

ii. Periodic Tenancy (Renewable Estate) (Bullok case)1. Tenancy which extends itself for successive periods 2. Until notice of termination is given (common law notice 1 year is 6 mo3. There is no end date

iii. Tenancy at will1. Terminable at pleasure “at will” of either party2. No notice required; just get out3. No end date

iv. Tenancy at sufferance1. Continued unlawful possession after a rightfully obtained possessory

estate termination2. Different from tenancy at will be it is unlawful right.

v. Statutory Tenancy1. Tenancy created by statutory provisions

vi. Trespassvii. Bullok – daughter died; had period tenancy court found it was not transferred

to her and that she was trespasser. Court found lease terminated upon notice of tenant’s death. Death terminates tenancy at will and sufferance; death does not term estate of years.

b. 2 Transfers by the tenanti. Assignment: transfers the lesee’s entire interest in the property

ii. Sublease: transfers only a porition of that interestiii. Split in rule regarding transfer

1. Majority rule : if the only thing the tenant retains is the right of re-entry, it is still an assignment.

2. Minority rule : retaining the right of re-entry is a sublease.iv. Split in Lessor’s Interest in Preventing Transfer: Consent Clauses

1. Majority rule : landlord is able to arbitrarily refuse to consenta. Some reasons, protect property, conveyance idea.

2. Minority rule: landlord cannot withhold consent unless it is “commercially reasonable.”

a. Factors to look at: financial responsibility, alteration property, illegal activity, nature of occupancy.

c. Transfers by landlordi. Priority Interest: First in time, first in right

1. Senior interest – closer to the front of list2. Junior interest – closer to end of list

ii. Subordination:1. The act/process by which a person with a more senior interest gives up

sonority thus reordering the priority of the claims.

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2. Subordination agreement: agreement by which the holder of a normally senior interest agrees to subordinate that otherwise would be junior.

iii. Attornment:1. Act of a person who holds a leasehold interest in land by which he

agrees to pay rent to a new landlord.iv. Non-Disturbance

1. Landlord agrees to recognize tenant’s right to remain in leasehold undisturbed as long as tenant continues to comply with terms of lease

v. SNDA clause: a clause in lease that contains provisions for subordination, nondisturbance and attornment.

1. General rule : foreclosure of a trust deed, terminates subordinate interest including lease.

2. Miscione case: parties can contractually agree to alter priorities to avoid general rule and if landlord signs agreement with SNDA clause, all parties protected b/c Attornment clause will survive the foreclosure.

d. Landlord’s Duty to Deliver Possessioni. Majority Rule: English Rule (Set forth in Restatement)

1. When lease is silent, landlord must deliver actual possession of premises at beginning of term.

ii. Minority Rule: American Rule (Keydata case)1. Landlord merely promises that possession will not be withheld by

himself.

e. Tenant’s Duty to Take and Continue Possessioni. Continuous operation clause:

1. Clause requiring the tenant to operate continuously throughout the lease term.

ii. Use of premises clause: 1. Describes the use to which the tenant can use the property2. It operates as a restriction; not as a requirement of continued operation

iii. Desertion or abandonment clause1. Require the tenant only to occupy the premises, but not to engage in

continuous operations.iv. Walmart: finding major anchor tenant breach in lease. v. Tenant’s duty depends on language of lease; how clauses read; clarity is

important.

f. Landlord duty to make premises okayi. Common Law Rule: Rule of caveat emptor – let the buyer beware.

1. There is no implied promise on behalf of landlord that the leased premises are fit for purposes that for which the tenant wants to put the land to.

a. Anderson; tenant obligated even though land too soft for theater.

2. Tenant should investigate themselves; leases considered independent and landlord’s breach of maintenance promises do not affect tenant’s obligation to pay rent.

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3. Only Common Law Remedy Tenant: Constructive Eviction a. Cause of action under common law for tenant to get out of

paying rent. 2 elements not easy to meet standardi. Lease substantially impaired

ii. By wrongful act of landlord

ii. Modern Law Rule: Mutually Dependent Covenants 1. Reflected in Restatement (2 nd ) of Property

a. If tenant is deprived of something that was a significant inducement in making the lease; and landlord fails to fix the problem within reasonable time, tenant can term release.

2. 4 Elements Dependent Covenants a. Landlord fails to perform w/in reasonable timeb. After having notice of problem from tenantc. A promise that was a substantial benefit understood at the time

the lease was entered to be significant to the purpose thereof.d. That was a significant inducement to tenant’s entering the

lease;e. Wasson: dry space necessary high printing; significant

inducement to enter that premises would be dry tenant entitle to term lease and move out w/o continued obligation to pay rent under lease.

iii. Tenant’s Duty to Restore Premises in Good Condition at End of Lease1. Restoration Pursuant to Lease

i. Common law rule for tenant’s duty to restore ii. If lease is silent, tenant has no obligation to restore it.

iii. If lease is not silent look at terms to dictate whether tenant duty

1. “duty to maintain premises” no duty to /restore 2. “return premises in as good condition” duty to

restore2. Even without Lease

a. Tenant has duty to avoid waste despite what is in lease b. Definition: Conduct beyond ordinarily use that is injurious to

landlord’s interest once lease over, there is waste. i. 2 Types of Waste

1. Permissive/Involuntary: failure to maintain premises, allow damage.

2. Voluntary Waste: intentional acts damaging property

c. Rumiche: must affect “a vital and substantial portion of premises so as to change its characteristics appearance, fundamental purpose of building or uses contemplated. In this case, replacing damaged ceiling & light fixtures was not large enough.

3. Fixturesa. General rule : something that gets affixed to land or realty

property of landlord; tenant cannot remove fixture.b. If it is not affixed it is personal and cannot be removed.

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c. Trade fixtures – things that may or maybe not be affixed but party of business/trade done by tenant.

i. Pfeifle: Look at intent parties. Did they intend for personal property or fixture to remain with landlord. If personal property tenant can remove provided no damage to lease premises. So whether affixed is not conclusive; need to consider intent.

1. Other factors to consider whether trade fixturea. Was it bought separate from propertyb. Means of attachmentc. Adapation to purpose of premises

iv. Premises Liability: Torts, Losses & Injuries1. Common law rule : landlord is not liable for personal injury or death

caused by premises defects UNLESS he undertook duty of care and negligently performed it.

a. Cases opposite result. Doe case, court found commercial office building liable for sexual assault because it provided security.

2. Some states have statutes that impose tort liability on landlords.3. Bonafacio: landlord’s duty is non-delegable.

v. 5 Rent Clauses & Other Payment Obligations1. Fixed or Gross Rent Provisions

a. Tenant pays flat fixed amount rent + utilitiesi. Advantage simplicity & convenience

b. Landlord pays TIM (taxes, insurance & maintenance)i. Advantage gets net of rent-TIM, control TIM, get more

net2. Triple Net Lease

a. Tenant pays TIM + smaller monthly renti. Advantage: control TIM so save $$

b. Landlord pays no costs, maybe some repairsi. Advantage: avoid TIM & risk re: TIM;

c. Good to use when absent landlord; commercial lease type 3. Percentage Lease

a. Tenant pays % of gross incomei. Advantage: pay less if business doesn’t do well; but

more if successfulb. Landlord: TIM; makes money if tenant does

i. Advantage: potential to make lots $$ if business wellc. Found in shopping center leases; mutual interest max sales.

4. Combination of Clauses a. K-mart case: gross, escalator, percentage provision.

5. Escalator Clause a. Built in increases in RENT/rent.b. Good to use business.

6. Mclaren: defendant won because expert provided better estimate of fair market value.

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vi. Renewal, Termination & Holdover1. Termination or Renewal requires compliance with lease. Pay attention

to terms of leasea. Some States require exact complianceb. Federal law requires substantial compliance.

2. 3 Ways Term lease outside normal expiration & term by termsa. Surrender

i. Early term of lease by agreement by tenant and landlord to end lease

ii. Can occur by Express agreement or implied (landlord conduct implies ll accepting early)

b. Abandonmenti. Unilateral leaving by tenant.

ii. Tenant wants to end but landlord does not want to.iii. Landlord has 2 options

i. Treat lease as term get new tenant. ii. LL can say lease is still in effect and seek damages

for abandonment of premisesc. Destruction

i. Common law rule: destruction does not term lease.ii. Modified Rule State statues : Uniform Residential &

Landlord & Tenant Act permits tenant to term if the premises are destroyed such that leasehold is substantially impaired; the tenant is excused so treat lease as terminated and not pay rent anymore

3. Holdovera. Lease is over but tenant stays on. b. Common law rule Hershfield : tenant who holds over allows

landlord to make election: 1) trespasser; 2) landlord can say tenant has renewed for similar term.

c. In Hershfield court found was not renewal even tenant held over because he was moving out. No implied agreement that he wanted to renew.. Need voluntary act that tenant wanted to renw.

i. Language of lease is important; double rent provision; forfeiture security to discourage hold over. Such provisions can give up landlord’s right option to say it was renewed.

vii. Implied Covenants in Leases1. 2 Implied Covenants in leases in which even if not expressed in leases,

court recognizes to protect tenants

2. Implied Covenant of Quiet Enjoyment a. WHAT IT IS: Promise on part of landlord that neither landlord,

nor anyone working, will wrongfully interfere with use and enjoyment of leased property.

i. Idea tenant should enjoy quietly (not sound but undisturbed perspective) so if it is disturbed, this claim can arise.

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b. WHEN ARISE: Tenant has left b/c landlord or someone landlord controls, disturbs the tenant’s quiet enjoyment this claim arises.

i. ISSUE: Whether T is obligated to continue to pay rent or breach of implied covenant of quiet enjoyment created a situation where the T is constructively evicted and therefore does not have to comply with terms of lease.

c. Can be commercial or residentiald. Focus on conduct of landlorde. 5 Elements breach implied covenant claim (also elements

constructive eviction)i. Wrongful conduct by or attributable to landlord

1. Trace the conduct disturbing tenant’s enjoyment back to something landlord did. “conduct by or attributable to landlord”

a. E.g. night club owner who landlord apt. too much noise; this is under his control. E.g. minature golf case, youth not there by control;

ii. Substantial deprivation of enjoyment of premises a. Minor things will not give rise of breach.

Must be fundamental interference legitimate enjoyment of use premises; leaky faucet, no heat.

iii. Notice to landlord of alleged breach iv. Reasonable time for landlord to cure (depend circums)v. Abandonment b tenant within reasonable time after L’s

wrongful conduct a. Pfeifle case not unreasonable dentist

wait for office to be built.b. Depends on type of circumstances tenant

is applying; are they serial, does it have to accumulate

3. Implied Warranty of Habitability a. WHAT IT IS: A promise or warranty by landlord; that

premises are habitable. So claims tend to arise in residential setting.

b. WHEN ARISE: when tenant does not pay rent. c. Broader than other covenant so detoriation, disrepair of

building might violate.d. Focuses on condition of premises are they habitablee. 2 approaches of habitability:

i. Liberal approach Javins compliance with housing code; ii. Minimalist approach Dick: violation of code is helpful

guidance to habitability. Real test: do conditions deprive tenant of something essential; life, safety health

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f. How much can tenant withhold for landlord’s breach of implied warranty of habitability

i. Javins: remanded to see how much right of possession had been impaired by inhabitable conditions; There is abuse by tenants; but courts are willing to have so tenant has certain rights that can count on.

viii. 6 Landlord Remedies for Tenant Breaches1. Security deposits

a. May be entitled however landlord must understand requirements to account for deposit.

b. Garcia case shows failure to comply can result in forfeiture AND forfeiture claim for damages beyond damages and payment of attorneys fees

2. Self Help: Eviction thru sum proceedings: Forceable Entry & Detainer a. Process by which Landlord can sue to regain possession;

decision determined quickly short windows service and limits issue to whether or not landlord should regain possession

i. Tenants can raise this by raising implied warrant of habitability. Courts will hear it at times and the summary proceedings will be prolonged.

3. Damages for injury to property, Unpaid rent, consequential damages 4. Split Duty to mitigate

a. Common law rule : landlord has no duty to mitigate.b. 42 states say duty to mitigate b/c contractual nature.

i. Austin Hill; court said b/c lease is contracts applied the rule of mitigation and found landlord had duty to release premises to other tenant to mitigate loss.

5. Potential Equitable Relief i. Cushman court found equitable relief pursuant to

continuous operation clause was appropriate for bakery.6. Landlords must remember

a. No Retaliatory Eviction: Eviction cannot be in retaliation or attempt to penalize tenant for exercising right of reporting violations under law. LL must be careful how articulate it.

ix. 3 Tenant’s Remedies when landlord breaches 1. Argue breaching under implied warranty of habitability and modern

law rule of mutually dependent covenants.a. Vacate premises and term lease after notice and failure to make

repairsb. Withhold rent until defects cured

i. Most states may require deposit in escrow accountc. Use rent for repairs

i. Make repairs and deduct reasonable costs; must give notice.

x. Anti discrimination regulation1. Fair Housing Act of 1968

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a. No discrimination based on color, religion, sex, familial status or national origin.

b. P has to show prima facie case of discriminationc. D shifts to burden and show non-discriminatory reason why

didd. If he can, the burden back to P to show it was pre-texual in

nature2. American with Disabilities Act

a. Statutory imposition on landlord – landlord make reasonable accommodation for people with disabilities.

V. 2 Common Law Ways to Regulate Land Use which are inadequatea. Trespass

i. Physical entry on landii. E.g. shooting bullets over land; smoking light not trespass m/b nuisance

b. Nuisancei. The unreasonable, unusual or unnatural use of one’s property so that it

substantially impairs the right for another to peaceably enjoy his or her property.

ii. 2 Flavors of Nuisance1. Private nuisance: interferes with private property.2. Public nuisance: interferes with general public health and safety.

iii. Private Nuisance 1. Common Law Rule

a. Focuses on the unreasonable conduct of D2. Modern Rule adopted Restatement 822

a. Focuses on the unreasonable interferenceb. 3 Elements

i. Invasion of P’s use or enjoymentii. D’s conduct is proximate cause of invasion

iii. Invasion intentional and unreasonable or negligent reckless

c. Balance factors to determine if interference is unreasonablei. The interfering and invaded uses

ii. Location of landiii. Suitability of each useiv. Any precautionv. Any other relevant factor

d. A reasonable and legal use of property can still cause an unreasonable interference with a neighbor’s use and therefore constitute nuisance

VI. Limits on Governmental Power over Property: Takinga. Due Process & Equal Protection Clauses

i. 5th Amendment: no person should be deprived of life, liberty or property w/o due process of law

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ii. 14th Amendment: no state shall deprive any person of life, liberty or property, w/o due process of law, nor deny any person equal protection of laws.

iii. So one should always consider a due process and equal protection clause challenge when they believe the government is violating their rights.

1. To prevail, the statutory classification must fail the rational basis test.2. In other words, if there is any conceivable set of facts which is rational

basis for classification, it will be upheld.a. Explanation does not have to be something legislative thought

of; court just come up reasonable basis for different treatment of classes people within statue; it is sufficient to satisfy rational basis test.

b. 3 Elements Taking i. Taking

ii. Public useiii. Just compensation

c. 2 ways taking i. Regulatory Taking: By effect

1. government action has effect taking the property even if not intended. Regulatory taking. Taking by regulation that govt issued

ii. Intends to take property by Eminent domain/condemnation. 1. E.g. wants to build road. (Kelo)

d. Regulatory Taking i. Argue property is being taken w/o just compensation in violation of 5th

Amendment. (4 ways)1. Permanent physical occupation of property is a taking that requires

compensation. a. E.g. mailbox.

2. Physical presence – giving up right to exclude others even if they cannot stay forever

a. E.g. easement3. Invasion by third parties: govt authorize a 3rd party to permanently

occupy private propertya. E.g. cable co. allowed to install cables.

4. Taking in context of confidential info for govts own use.a. E.g. giving up right to exclude; disclosing someones trade

secret.

ii. Nolan & Dolan – SC articulated a 2 part test that is to be applied in a regulatory taking context.

1. Essential Nexus between state interest and condition the state is imposing.

a. Nolan called it a “fit”. So no fit = unconstitutional = taking.i. E.g. Nolan condition imposed was easement; state’s

interest visual barrier house create; court found taking b/c no fit; the state’s interest the visual barrier is not being addressed by condition imposed the easement.

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2. Rough Proportionality deals with relationship between exaction and impact of project.

a. In other words, does the requirement on permitee bear a rough proportionality to impact that the applicant’s project is actually going to have on the public

i. E.g. In Dolan the exaction requirement was the 10% to greenway and bike path and impact was to create less flooding but If Dolan put more pavement and created an additional 100k gallon of storm water, the question is whether 10% requirement imposed is necessary or roughly equal to the amount of land needed to deal with 100. Water. If it was imposed to handle million gallons of storm water, there is not rough, b/c impact is 100k gallon, but exaction needed to handle millions. Look like gvt trying to take and use for other purpose.

iii. Penn Central View Regulatory Taking 1. Only applies when a law regulates and the law is the taking of

property not asking for something in return like in Dolan. Issue: application of NY’s historic landmark legislation to Penn Central Station. No exaction being demanded but the impact of existing regulation upon the property.

2. 4 Factors Go to Analysis of Whether Taking Occurred a. Is there a valid public purpose behind regulation gvt imposed

i. Zoning/public health and safety regulationsb. What is nature of regulation

i. Physical invasion? Onerous leans towards taking. c. What are the investment back expectation of party being

regulatedi. Do they expect to make reasonable return

d. Diminution of value of property held by property owner?i. 3 and 4 inter-related

iv. Lucas Case – eg. Regulation goes so far destroy value of interest 1. Taking I a total deprivation of beneficial use (economic benefit) unless

interest was not his right to sue in the first place. a. Lucas owned 2 lots beach front; after bought them and

intended to build state passed an act prohibited any construction; worthless. Court found: total depriviation of beneficial use; so almost like physical appropriation like Loretto. But under Penn Central factor 3 destroyed by virtue of regulation.

v. What are remedies available to property owner 1. Inverse condemnation First English case: prevention of use of

property, even temporary, can give rise to claim that taking has occurred so gvt must pay just compensation. County regulation prevented operating camp for 6 years, the period of time was a taking

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that entitled church to compensation. So even a temporary taking can give rise to claim that just compensation needs to be paid.

2. Measured damages property owner by what owner lost not what govt paid.

a. Brown; property owner lost nothing,. There is taking, no damages b/c clients lost nothing.

vi. Eminent Side Taking1. Language of taking clause requiring that taking be for public use – can

be satisfied by the finding that there is public purpose behind the condemnation. In Kelo it was (economic development)

a. So court said it would defer to legislature’s finding relating to economic development potential of project that was under construction

b. Strong dissent by justice occonor, argued that by allowing legislature to declare public purpose, court may in fact be abdicating its responsibility to review such laws and such attempts to exercise eminent domain authority.

I. Introduction to Zoninga. Traditional Zoning:

i. Type of land use regulation that identifies particular types of land that will occur in district or zones.

1. Village Euclid Court said constitutional, bc exercise police power to protect health and safety of citizens; split up to make safe.

b. SZEA i. Written by fed govt; empowers cities to adopt zoning law.

ii. Number, shape and area of these districts that are best deemed suited to carry out purpose of act

iii. Section 3 – comprehensive plan (municipality has authority to do this) governs the uses

1. Municipality has ability to say certain areas within municipality will be dedicated to specific areas of land use.

2. Idea create areas of particular type of land use, thru comprehensive plan, and care up land to district to have specific land use designations.

c. Zoning activities inconsistent with comprehensive plan i. Spot Zoning : Taking one area within zone and make it be some different

land use. Benefit owner This is bad; 1. Generally is bad; introducing a theoretical inconsistent land use

into area. 2. Tools to avoid spot zoning is comprehensive plan – b/c it

designates areas and points out which is spot zoning and is not allowed.

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b. Sometimes zoning not appropriate representation what going on. i. Bell case. Not Spot Zoning when circumstances of neighborhood has

changed; just recognized affect of new circumstances.

c. Zoning ordinance can function as its own comprehensive claim.

d. How does zoning process work 4-7 1. Section 4&5: how municipality creates rule;provides how rules can

be change2. Section 6 zoning commission set up that recommends boundaries,

comprehensive plan and district within comprehensive plan3. Section 7 board of adjustment, parties can appeal and adjustment

can make to zoning to take into account circumstances of certain property.

e. Zoning is Political Process 1. Sometimes reflects polical realties vs. health and safety.2. Primary way gvt control land use; how particular pieces of

property can be used by the owner.3. Euclid tells us this is a constitutional gvt. Power and control over

land use.

II. 2 of the Major Flexible tools available for zoning a. Special use permit/conditional use permit

i. Conditional use/special use: additional kind of land use identified ok within district, provided that board first reviews and approves the uses

1. Conditional uses are allowed within the zoning ordinance/ Section 7 gives the zoning authority power to hear special exceptions under terms of ordinance.

b. Variancesi. The Permanent treatment of land in a manner different from what zoning

requires because of land’s characteristics.1. What drives variances, are the characteristics of land, shape or

some other feature, or location of land; which makes it appropriate to vary the requirements of zoning ordinance

2. 4 Elements Variance (Rancord case)a. Variance is not contrary to public interestb. Special conditions exist so that literal enforcement of

ordinance would cause unnecessary hardshipc. Spirit of ordinance would be observedd. Substantial justice would be done by granting variance

3. 2 views for unnecessary hardship a. Old view – high standard that says hardship was unduly

restricted use of land, so owner could not make any reasonable use of land at all.

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b. New view; adopted by Rancord – rejected old view and adopted a modified view unnecessary hardship shown 3 things

i. 3 part test unnecessary hardship1. Zoning restriction interferes with a

reasonable use of property considering its unique setting

2. No fair and substantial relationship exist between general use of ordinance and specific restriction of property

3. Variance would not injure the private rights of others.

Rancord case: people owned property wanted to put barn for horses. is it reasonable use of property considering unique setting; rural area but property shaped in away barn horses would be in rear not observable in street, impact would neighbor minimize. All of this indicated that having horses could be reasonable use, there was not an unreasonable use of property. Because of this, that limits the impact of others, so other elements satisfied.

2. Variance looks at property, surroundings to determine whether unnecessary hardship is created, so modifications can be made so owner can make reasonable use of property.

a. Key about unnecessary hardship is that it is balancing hardship of owner and public interest.

b. If the courts fail to do the balancing, court will tend to overturn it as Southpadre case, the insistence that stay firm to requirements and not consider the possibility variance appropriate, failed b/c no balance.

3. 2 flavors of variance Use variance v. Area variance a. Use Variance:

i. different type of use on property. So zoning has one classification and proposed use is different

ii. Stringent standard to be satisfied. In effect it is going against comprehensive planning and idea of zoning.

b. Area Variance: i. use is ok under ordiance but property owner seeks to alter a physical

characteristic required by zoning plan.ii. lower standard to meet showing. I am doing same kind of thing allowed

by ordiance, but I need some relief in order to use property to build something.

1. Southpadre Island case; setback requirements and piece of property shape is such that it is impossible to comply with those requirements and still build something. Triangular piece of property, set back requirements say you have to be certain feet, that may make not enough room to build building

iii. “practicable hardship” vs. unnecessary hardship.

3 Other Tools for flexibility1. Floating Zone

a. way of telling people the specifications or standards for a particular area in advance of any development. E.g. undeveloped area, it will be industrial in

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future; there are stds that will generally apply. Or u will say mobile home districts in future, this is what u need to have to be successful

b. Identifying a head of time the standards and requirements, people can understand and develop accordingly.

c. Area or idea, but not fixed;

2. Cluster zones a. Place allow building to be clustered closely together, changing density

requirements to allow open space or other use of propertyb. Relate to issue of density, allow different density to accommodate open use or

some other use considered desirable

3. Planned Unit Developmentsa. Idea Whole development in particular area that might have several different uses

involved; i. E.g. residential community with commercial components; people walk to

stores.ii. Planning entire development as 1 unit; which may allow u to alter density

requirement or alter with commercial b/c the whole unit satisfies the requirements of the zoning ordinance.

III. Non-conforming usea. Pre-existing uses that does not comply with zoning after a change with

classification.b. Way to deal with a particular use of land, when zoning classifications of land

changes; so that the use is no longer in conformance of statue.i. e.g. property with store on it; commercial and retail use; classification

changed zoned residential; so use was ok before in its pre-existing state but now it is non-conforming

c. Rights of non-conforming owner i. Vested rights – rights in a pre-existing use that if interfered with might be

a taking or denial of due process..ii. What are some of the vested rights?

1. Opportunity to continue to conduct the pre-existing use for at least some period of time. Municipality has to tolerate this non-conforming use for period of time known as the “amortization period.”

a. Amoritization period – period of time non-conforming use is tolerated before have to find new place to go.

i. Village of Vitale: called it grace period; to grudgingly tolerate but at some point this right terminates

ii. How long amortization period is going to continue?1. In some cases court said it was perfectly

reasonable way to amortize to last until ownership changed.

2. It maybe allow to exist forever. But they can set a reasonable time period.

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d. Can arise out of language of ordinancee. Majority rule: mere planning of use, is insufficient. Need to start construction.f. Cities can be forced recognized to non-conforming use and vested rights by

estoppels if detrimental reliance on representations made by town.

Subdivision/Planningo A plan of plat to a subdivision is designed to provide details of where street would

go, etc. The job of a Planning Commission is to make sure plat provides property arrangement to meet public needs.

o Planning is the administrative process of checking the plan against statutory requirements to determine whether proposed subdivision meets the requirements under the statute.

o The process involves negotiation process between developer and planning commission and often the commission ask for exactions. An exaction demands the developer to do certain things.

o However, the planning commission is ultimately subject to constitutional limits requiring that the 1) the exercise of powers be clear; 2) and not demand so much of developer that it constitutes a taking.