Trespass

Obrien v obrien

Facts: in this divorce action, the parties only asset of any consequence is the husbands newly acquired license ot practice medicine. She claimed that she had relinquished the opportunity to obtain permanent certification while plaintiff pursued his education. While he pursued his studies defendant held several teaching and tutorial positions and contributed her earnings to their joint expenses Rule: the equitable distribution law contemplates only two classes of property: marital property and separate property. The former, which is subject to equitable distribution, is defines broadly as all property acquired by either or both spouses during the marriage and before the execution of a separate agreement or the commencement of a matrimonial action, regardless of the form in which title is held -spouses have an equitable claim to things of value arising out of the marital relationship and classifies them as subject to distribution by focusing on the marital states of the parties at the time of acquisition. Those things acquire during marriage and subject to distribution have been classified as marital property although they hardly fall within the traditional property concepts because there is no common law proeprty interest remotely resembling marital property -in making an equitable distribution of marital property, the court shall consider any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career potential of the other party. an interest in a profession or professional career potential is marital proeprty which may be represented by direct or indirect contributions of the non-title holding spouse, including financial contributions and nonfinancial contributions made by caring for the home and family Reasoning: nearly all of the parties 9 year marriage was devoted to the acquisition of plaintiffs medical license and defendant played a major role in that project. She worked continuously during the marriage and contributing of all her earnings to their joint effort, she sacrificed her own educational and career opportunities and she traveled with plaintiff to mexico for three and one half years while he attended medical school -these contributions represent investments in the economic partnership of the marriage and that the product of the parties joint efforts, the professional license, should be considered marital property -plaintiffs principle argument is that a professional license is not marital property because it does not fit within the traditional view of property as something which has an exchange valye on the open market and is capable of sale, assignment or transfer -it ignores the fact that whether a professional license constitutes marital property is to be judged by the language of the statute which created this new species of property previously unknown at common law or under proper statutes. Thus whether the license fits within traditional property concepts is of no consequence. Second, it is an overstatement to assert that a profesisonal license could not be considered property even outside the context of section 236. A professional license is a valueable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder. That a professional license has no market value is irrelevant -limiting a working psouse to a maintenance awar,d either general or rehabilitative, not only is contrary to the economic partnership concept underlying the statute but also retains the uncertain and inequitable economic ties of dependence that the legislature sought to extinguish by equitable distribution. -turning to the question of valuation it has been suggested that even if a professional license is considered marital property, the working spouse is entitled only to reimbursement of their direct financial contributions. Such a result is completely at odds with statutes requirement that the court give full consideration to both direct and direct and indirect contributions

Ark land co v harper

facts: caudill heirs contend that the legal precedents of this court warrant partitioning the property in kind, not a sale. Property was owned exclusively by the caudill family. However, in 2001 ark land acquired a 67.5% undivided interest in the land by purchasing the property interests of several caudill family members. Ark land attempted to purchase the remaining property interests held by the caudill heirs, but they refused to sell. After the acaudill heirs refused to sell their interest in the land, ark land filed the complaint seeking to have the land partitioned and sold Issue: whether the evidence supported the circuit court's conclusion that the property could not be conveniently partitioned in kind, thus warranting a partition by sale Rule: partition means the division of the land held in cotenancy into the cotenants respective fractional shares. If the land cannot be fairly divided, them the entire estate may be sold and the proceeds appropriately divided. -partition in kind leaves cotenants holding the same estates as before and does not force a sale on unwilling cotenants -a party desiring to compel partition through sale is required to demonstrate (1) that the property cannot be conveniently partitioned in kind, (2) that the interests of one or more of the parties will be promoted by the sale, and (3) that the interests of the other parties will not be prejudiced by the sale -the economic value of property may be a factor to consider in determining whether to partition in kind or to force a sale -our cases do not support the conclusion that economic value of property is the exclusive test for determining whether to partition in kind or to partition by sale -evidence of longstanding ownership, coupled with sentimental or emotional intersts in the property, may also be considered in deciding whether the interests of the party opposing the sale will be prejudiced y the property's sale. this latter factor should ordinarily control when it is shown that the property can be partitioned in kind, though it may entail some economic inconvenience to the party seeking a sale Reasoning: partition by sale, when it is not voluntary by all parties, can be a harsh result for the cotenants who opposes the sale. This is because a particular piece of real estate cannot be replaced by any sum of money, however large, and one who wants a particular estate for a specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money -we are troubled by the circuit courts conclusion that partition by sale was necessary because the economic value of the property would be less if partitioned in kind -their exclusive interest was grounded in the longstanding family ownership of the property and their emotional desire to keep their ancestral family jome within the family. It is quite clear that this emotional interest would be prejudiced through a sale of the property -the additional economic burden that would be imposed on ark land, as a result of partitioning in kind, is not determinative under the facts of this case -when a commercial entity purchases property because it believes it can make money from a specific use of the property, that property will increase in value based up\on the expectations of the commercial entity. This self created enhancement in the value of property cannot be the determinative factor in forcing a pre-existing co-owner to give up their rights in property. To have such a rule would permit commercial entities to always evict pre-existing co-owners, because a commercial entitys interest in property will invariably increase its valye -ark land voluntary took an economical gamble that it would be able to get all of the caudill family members to sell their interests in the property. The fact that ark land miscalculate don its ability to acquire outright all interests in the property cannot form the basis for depriving the caudill heirs of their emotional interests in maintaining their ancestral family home Holding: this case is remanded with directions ot the curcuit court to enter an order requiring the property to be partitioned in kind, consistent with the report and testimony of the caudill heirs mining engineer expert

Federal public accomodation protections cont

•Applying the plain meaning rule, a court must henerally give effect to the plain meaning of the statutory term unless it qualifies as a term of art •Canons of construction that you might wish to consider •Plain meaning rule- the starting point is almost always the plain meaning of the statute -Avoid an absurd adult -Terms of art -Statutory purpose -Expression unius- this phrase means that the expression of one thing suggests the exclusion of others

Married couples

•The married womens property acts, widely adopted by the start of the 20th century, were an important step away from coverture -These laws allowed a married woman to own and manage property as if she were single, and gave control to women over thier own earnings

Donovan v grand victoria casino and resort

Facts: Grand Victoria's Director of table games advised Donovan that Gran Victoria had decided to ban Donovan from playing blackjack. After Donovan indicated that he would not comply with grand Victoria's request, he was evicted and placed on Gran Victoria's list of excluded patrons Holding: gran Victoria maintains that its Exclusion of Donovan from the game of blackjack was proper because at common law the arbitrary exclusion of a patron from places of privately owned amusement was not actionable absent a statute prohibiting such exclusion. We agree. Grand Victoria enjoyed the common law right to exclude Donovan Rule: one of the time honored principles of property law is the absolute and unconditional right of private property owners to exclude from their domain those entering without permission. This common law right was explicitly extended to proprietors of privately owned amusements. -engaged in a strictly private business- he is under no implied obligation to serve the public and is under no duty to admit everyone who may apply and be willing to pay for a ticket Reasoning: Indiana courts have never recognized a public right of access to private property -the casino proprietor must be able to control admission to its facilities without risk of a lawsuit and the necessity of proving that every person excluded would actually engage in some unlawful activity

Sawada v endo

Facts: plaintiffs seeking to set aside a conveyance of real property, sawadas were injured when struck by a motor vehicle operated by defendant. On the date of the accident, endo was the owner as a tenant by the entirety with his wife, of a parcel of real property. By deed, endo and his wife conveyed the property to their sons. Both were aware at the time of conveyance that their father had been involved in an accident and that he carried no liability insurance. Endo and his wife, while reserving no life interests therein, continued to reside on the premises Issue: whether the interest of one spouse is real property, held in tenancy by the entireties, is subject to levy and execution by their individual creditors Rule: a joint tenant has a specific, albiet undivided, interest in the property and if he survives his co-tenant he becomes the owner of a larger interest than he had prior to the death of the other joint tenant. The tenants by the entirety are each deemed to be seized of the entirety from the time of the creation of the estate -the tenancy was and still is predicated upon the legal unity of husband and wife, bu the acts converted it into a unity of equals. No longer could the husband convey, lease, mortgage, or otherwise encumber the property without her consent -neither husband or wife has a separate divisible interest in the property held by the entire day that can be conveyed or reached by execution. A joint tenancy may be destroyed by voluntary alienation or by levy and execution or by compulsory partition, but a tenancy by the entirety may not. The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety -estate by the entirety- a unilaterally indestructible right of survivorship, an inability of one spouse to alienate his interest and importantly for this case, a nroad immunity from claims of separate creditors remain among its vital incidents Holding: we now hold that the conveyance of the marital property by endo to the sons was not in fraud of endo's judgment creditors Reasoning: no unfairness to the creditor is involved here

ark land cont

Maynard concurrence •I agree that evidence of longstanding ownership along with sentimental or emotional attachment to proeprty are factors that should be considered and, in some instances, control the decision of whether to partition in kind or sale jointly-owned property which is the subject of a partition proceeding •I dissent in this case however because I do not believe that evidence to support the application of those factors was presented here -in that regard, the record shows that none of the appellants have resided at the subject property for years -I believe that the sporadic use of the property by the appellants in this case does not outweigh the economic inconvenience that the appellee will suffer as a result of this property being partitioned in kind •i am also troubled by the majoritys decision that this property should be partitioned in kind instead of being sold because I dont believe that such would have been the case were this property going ot be put to some use other than coal mining

Raleigh cont

Reasoning: exercise of the publics right to swim and bathe below the main Highwater mark May depend upon a right to pass across the Upland beach. Without some means of access the public right to use the foreshore it would be meaningless. To say that the public trust doctrine entitles the public to swim in the ocean and use the foreshore and connection there with without assuring the public of a feasible access route was seriously in pain John, if not effectively eliminate, the rights of the public trust doctrine -the dry sand beach is easily reached by pedestrians using the path bisecting the Raleigh avenue extension from the end of the paved roadway to the bulkhead. There is no publicly owned beach area in lower township -local residents have expressed their individual concerns about access and use. That there is enormous public interest in the new jersey shore is well known; tourism associated with new jerseys beaches is a $16 billion annual industry -atlantis beach was used by the public for many years

The power of investigative journalism

Some states have enacted laws that expressly forbid undercover activities in agriculture that are known as ag-gag laws

Types of co-ownership

•Concurrent ownership means that two or more people own the same asset at the same time, with each owner having the simultaneous right to possess the entire property -There are three basic types of concurrent ownership: tenancy in common, joint tenancy with the right of survivorship and tenancy by the entirety •Some types of co-ownership structures are used as a will substitute- because they have a survivorship feature that passes the share of the co-owner who dies to the surviving co-owner Tenancy in common Joint tenancy with the right of survivorship Tenancy by the entireties

Federal public accomodation protections

42 USC 2000 equal access a. all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accomodations of any place of public accomodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin b. Each of the following establishments is a place of public accommodation within this title if its operations affect commerce, or if discrimination or segregation by it is supported by state action 1. any inn, hotel, motel 2. any restaurant, cafeteria, soda fountain 3. any motion putcure house, theater, concert hall, sports arena; and 4. any establishment (A)(i) which is physicaly located within the premises of any establishemtn otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment and (B) which holds itself out as serving patrons of any such covered establishment e. private establishments the provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishMent are made available to the consumers or patrons of an establishment within the scope of subsection b

Uston v resorts international hotel inc

Facts: appellant resorts international hotel excluded respondent, kenneth uston, from the blackjack tables in its casino because ustons strategy increases his chances of winning money Holding: we find constrained to refute any implication that the owners of places open to the public enjoy an absolute right to exclude patrons without good cause. We hold that the common law right to exclude is substantially limited by a competing common law right of reasonable access to public places -absent a valid contrary rule by the commission, uston possesses the usual right of reasonable access to resorts international blackjack tables Reasoning: the more private property is devoted to public use, the more it must accommodate the rates which inhere and individual members of the general public who use that property -respondent uston does not threaten the security of any casino occupant. Nor has he disrupted the functioning of any casino operations Rule: when property owners open their premises to the general public and the pursuit of their own property interests, they have no right to exclude people unreasonably. On the contrary, they have a duty not to act in an arbitrary or discriminatory manner toward persons who come on their premises Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use -the rate of property owners to exclude it from their promises those whose actions disrupt the regular any central operations of the premises or threaten the security of the premises and its occupants. In some circumstances, proprietors have a duty to remove disorderly or otherwise dangerous persons from the premises -whether a decision to exclude is reasonable must be determined from the facts of each case

State of new jersey v shack and tejeras

Facts: defendants entered upon private property to aid migrant farmworkers employed and housed there. Having refused to depart upon the demand of the owner. Defendant tejeras is a field worker for the farm workers division of the southwest citizens organization for poverty elimation, known by the acronym SCOPE, a nonprofit corp funded by the office of economic opportunity pursuant to an act of congress. The role of SCOPE includes providing for the heatlth services of the migrant farm worker Defendant arranged to go to the farm together. Shack carried literature to inform the migrant farmworkers of the assistance available to them under federal statutes Rule: title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises -a mans right in his real property of course is not absolute. Necessity, private or public, may justify entry upon the lands of another -this process involves not only the accomodation between the right of the owner and the interests of the general public in his use of his property, but involves also an accomodation between the right of the onwer and the right of individuals who are parties with him in consensual transactions relating to the use of the property Issue: whether the camp operators rights in his lands may stand between the migrant workers and those who would aid them -accordingly substantial alterations have been made as between a landlord and his tenant. The argument in this case understandably included the question whether the migrant worker should be deemed to be a tenant and thus entitled to the tenants right to receive visitors or whether his residence on the employers proeprty should be deemed to be merely incidental and aid of his employment, and hence to involve no possessory interest in the realty Reasoning: we find it unthinkable that the farmer-employer can assert a right to isolate the migrant worker in any respect significant for the workers well-being. We see no legitimate need for a right in the farmer to deny the worker the opportunity for aid available from federal, state or local services or from recognized charitable groups seeking to assist him -these rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties Holding: the migrant worker must be allowed to receive visitors there of his own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to workers who do not object to seeing them -it follows that defendants here invaded no possessory right of the farmer employer. Their conduct was therefore beyond the reach of the trespass statute

Denny v Elizabeth arden salons

Facts: in the cae an aftican American woman bought her mother a gift package from a beauty salon and day spa. A receptionist told her that there was a problem because the salon did not do black peoples hair. The mother and daughter brought this suit against the salon under title II of the civil rights act which prohibits racial discrimination in a place of public accommodation. Plaintiffs rely on only one subsection of title II's definition provision, contending that the salon is a place of entertainment Holding: we hold that the district court properly dismissed plaintiffs title II claim, because the salon is not a place of public accommodation, as that term is defined in the statute Reasoning: congress has clearly delineated those entitles that fall within title II's ambit and we are not at liberty to go beyond what it has plainly enacted -the plain text of the statute demonstrates that beauty salons are not covered by title II. They are not mentioned in any of the numorous defintions of place of public accommodation -the statutory language place of entertainment should be given full effect according to its generally accepted meaning -unlike a theater, concert hall, or sports area- the purpose of the salon in this case is to offer its customers hair, skin, and body care. The salon is more similar to businesses that offer tangible services, not entertainment -if, however, congress had intended for place of entertainment ot encompass any service establishment with tangential entertainment value, there would have been no reason for congress to include separate subsections for hotels, restaurants, and similar establishments in the statute -daniel v paul- the phrase should be interpreted in accord with its ordinary meaning to include both those establishments where patrons are entertained as spectators or listeners and those where entertainment takes the form of direct participation in some sport or activity

Olivas v olivas

Facts: petitioner carilina olivas and husband were divorced by a partiel decree. Husband appeals the rejection of his claims to compensation for his alleged constructive ouster from the community residence. Husband cjose to move out of the family home. Huaband contends that the district corut erred in failing ot find that he had been constructively ousted. From the family home. Husband and wife held the family home as community property during the marriage and as tenants in common after dissolution Rule: ordinarily a cotenant incurs no obligation to fellow cotenants by being the exclusive occupant of the premises. Mere occupation by a tenant of the entire estate does not render him liable to his co-tenant for the use and occupation of any part of the common property. The right of each to occupy the premises is one of the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The occupation of one, so long as he does not exclude the other, is but the exercise of a legal right. If for any reasona one does not choose to assert the right of common enjoyment, the other is not obliged to stay out; and if the sole occupation of one could render him liable therefor to the other, his legal right to the occupation would be dependent upon the caprice or indolence of his co-tenant, and this the law would not tolerate -the obligation of the occupuing cotenant to pay rent may arise in the absence of actual ouster when the realities of the situation, without there bing any fault by either cotenant, prevent the cotenants from sharing occupancy -income and can be liable to his co-tenants for rent for the used and occupation of the common property, his occupancy must be such as amounts to a denial of the right of his co-tenants to occupy the premises jointly with him, or the character of the property must be such as to make such joint occupancy impossible or impracticable -the spouse who departs the residence may be entitled to rent from the remaining spouse. Although one can say that the departing spouse has been constructively ousted, the term should not suggest physical misconduct or any fault whatsoever on the part of the remaining spouse -the remaining spouse should pay rent to the cotenant when both cannot be expected to live together on the property -if however hostility flows only from the cotenant out of possession, ordinarily there would be no constructive ouster. In that circumstance the departing spouse has abandoned their interest in possession, rather than being excluded -ouster triggers back rent

National federation of the blind v target

Facts: plaintiffs claim that target.com is inaccessible to the blind, and thereby violates federal law prohibiting discrimination against the disabled. Since the blind cannot use target.com, they are denied full and equal access to target stores, according to plaintiffs Rule: title III of the ADA prevents discrimination against the disabled in places of public accommodation: no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodations by any person who owns, leases or operates a place of public accommodation -discrimination under the ADA encompasses the denial of the opportunity by the disabled, to participate in programs or services, and providing the disabled with separate, but unequal, goods or services. To ensure that the disabled have full and equal enjoyment of the goods and services of places of public accommodation, the ADA requires reasonable modification of policies, practices, and procedures, the provision of auxiliary aids to ensure effective communication with the disabled, and the removal of architectural and communications barriers. The ADA thus departs from certain anti-discrimination statues in requiring that places of public accommodation take affirmative steps to accommodate the disabled -courts have held that a plaintiff must allege that there is a nexus between the challenged service and tha place of public accommodation. Under 9th circuit law, a place of public accommodation within the meaning of title III, is a physical place -the statute applies to the services of a place of public accommodation, not services in a place of public accommodation Reasoning: to limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute Holding: to the extent defendant argues that plaintiffs claims are not cognizable because they occur away from the place of public accommodation, defendants argument must fail -in sum, the court finds that to the extent that plaintiffs allege that the inaccessibility of target.com impedes the full and equal enjoyment of goods and services offered in target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that targrt.com offers info and services unconnected to target stores, which do not affect the enjoyment of goods and services unconnected to target stores, which do not affect the enjoyment of goods and services offered in target stores, the plaintiffs fail to state a claim under title III of the ADA

Gruen v gruen

Facts: plaintiffs commenced this action seeking a declaration that he is the rightful owner of a painting which he alleges his father, now deceased, gave to him. He asserts that his father made a valid gift of the title. Defendant, plaintive stepmother, as the painting now and has refused plaintiffs request that she turn it over to him. She contends that the purported gift was testamentary and nature and invalid in so far as the formalities of a well we're not met. Plaintiff never took possession of the painting nor did he seek to do so Rule: to make a valid inter vivos gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the done; and acceptance by the done. Second, the proponent of a gift has the burden of proving each of these elements by clear and convincing evidence -an inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by a will -the correct test is whether that maker intended the gift to have no effect until after the makers death, or whether he intended it to transfer. As long as the evidence establishes an intent to make a present an irrevocable transfer of title or the rate of ownership, there is a present transfer of some interest and a gift is effective immediately Delivery -in order ot have a valid inter vivos gift, there must be a delivery of the gift, either by a physical delivery of the subject of the gift or a constructive or symbolic delivery sufficient to divest the donor of dominion and control over the property. The requirement of delivery is not rigid or inflexible, but is to be applied in light of its purpose to avoid mistakes by donors and fraudulent claims by donees. Accordinrly, what is sufficient to constitute delivery must be tailored to suit the circumstances of the case -acceptance by the done is essential to the validity of an inter vivos gift, but when a gift is of value to the done, as it is here, the law will presume an acceptance on his part Reasoning: the evidence is all but conclusive however that victor intended to transfer ownership of the painting ot plaintiff in 1963 but to retain a lfie estate in it and that he did therefore effectively transfer a remainder interest in the painting ot plaintiff at that time. Although the original letter was not in evidence, testimony of h=its contents was received along with the substitute gift letter and its covering letter. The three letters should be considered together as a single instrument and when they are they unambiguously establish that victor intended to make a present gift. Of title to the painting at that time -victors failure to file a gift tax return sometimes may inducate that the donor had no intention of making a present gift, it does not necessarily do s and it is not dispositive in this case -plaintiff had made several contemporaneous statements acknowledging the gift to his friends and associates, even showing some of them his fathers gift letter Holding: we agree with the appellate division that interpretation of the affidavit was too speculative to support a finding of rejection and overcoming the substantial showing of acceptance by plaintiff. The judgment appealed from in the order of the appellate division brought up for review should be affirmed with costs

Pottinger v city of Miami

Facts: plaintiffs complaint alleges that the city of Miami has a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in the basic activities of life, including sleeping and eating, in the public places where they are forced to live. Plaintiffs further alleged that the city has arrested thousands of homeless people for such a life-sustaining conduct. Plaintiff sister that the city routinely seizes and destroys their property Holding: the court finds that injunctive relief is warranted in this case -the court concludes that the cities practice of arresting homeless individuals for performing inoffensive conduct in public when they have no place to go is cruel and unusual in violation of the eighth amendment, is overboard to the extent that it reaches innocent acts in violation of the due process clause of the 14thamendment and infringes on the fundamental right to travel in violation of the equal protection clause of the 14th amendment -the citys practice of seizing and destroying the property of homeless individuals without following its own written procedure for handling found or seized personal property violates plaintiffs rights under the fourth amendment Reasoning: the city has a pattern and practice of arresting homeless people for the purpose of driving them from public areas. Second, the cities practice of arresting homeless individuals for harmless, involuntary conduct which they must perform in public is cruel and unusual in violation of the eighth amendment. Third, such arrests violate plaintiffs due process rights because they reach innocent and inoffensive conduct. Fourth, the cities failure to show its own written procedure for handling personal property when seizing or destroying the property of homeless individuals violates plaintiffs fourth amendment rights. That, the cities practice of arresting homeless individuals for performing essential, life-sustaining acts in public when they have absolutely no place to go effectively infringes on their fundamental right to travel in violation of the equal protection clause -even assuming these asserted interests could be considered compelling, the city could certainly accomplish them through some manner that is less intrusive than arresting homeless individuals. The parks and streets could be cleaned and maintained without arresting the homeless. These interests cannot justify the burden that the arrests place on the right to travel -the city has not shown that arresting the homeless for being in the park after hours when they have no place else to go is the least intrusive means of addressing the interest in crime prevention Rule: the interests advanced by the city must be weighed to determine whether or not they are compelling and if so, whether they are accomplished through the least intrusive means

National organization for women v little league baseball

Facts: silvia pressler ordered little league baseball and all local baseball leagues chartered by it to admit girls aged 8-12 to participate in their baseball programs conducted in this state. These programs have heretofore been maintained solely for boys Holding: the hearing officer held that the hallmark of a place of public accommodation was that the public at large is invited and she found that little league issued an invasion organizations, although not having a specific pinpointable geographic area, are nevertheless places of public accommodation if, as little league does, they offer advantages and facilities on the basis of a general, public invitation to join. We are satisfied that the determination of the division on this issue is correct -in sum, we found no basis in anything argued by little league to support a determination that, consistent with the underlying purpose of the statutory prohibition against denial of the facilities of places of public accommodation on the account of sex, little league by virtue of its nature may reasonably be permitted to be restricted to boys In the age category under consideration Reasoning: the statutory noun "place" (of public accommodation) is a term of convenience, not of limitation. But a public conveyance, like a train, is a place of public accommodation although it has a moving situs -little league is a public accommodation because the invitation is open to children in the community at large, with no restriction (other than sex) whatever. It is public in the added sense that local governmental bodies characteristically make the playing areas available to the local leagues, ordinarily without charge

Jacque v steenberg homes inc

Facts: steenberg plowed a path through the jacques snow-covered field and via that path, delivered the mobile home. Consequently, the jacques sued steenberg homes for intentional trespass. Steenberg had been refused permission to cross the jaques land. Steenberg had been refused permission to cross the jacques land Holding: we conclude that when nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded. We further conclude that the $100,000 awarded by the jury is not excessive -the jacques argues that both the individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results. We agree with the jacques -The barnard rule should not apply when the tort supporting the award is intentional trespass to land Rule: this court has long recognized every persons constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person -the law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, though immeasurable in mere dollars, actual harm has occurred Reasoning: society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to self help remedies -punitive damages have the effect of bringing to punishment types of conduct that, though oppressive and hurtful to the individual, almost invariably go unpunished by the public prosecutor $30 forfeiture and a $1 nominal damage award are unlikely to restrain steenberg homes from similar conduct in the future. An appropriate punitive damage award probably will Holding: accordingly, assuming that the other requirements for punitive damages have been met, we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land

Watts v watts

Facts: the case involves a dispute sue ann watts, the plaintiff, and james watts, def, over their respective interests in property accumulated during their nonmarital cohabitation relationship which spanned 12 years and produced two children. The def persuaded the plaintiff to move into an apartment paid for by him and to quit her job. According to the amended complaint, def indicated to the plaintiff that he would provided for her. The parties began living together in a marriage like relationship holding themselves out to the public as husband and wife. The plaintiff assumed the defendants surname as her own. The parties filed joint income tax returns and maintained joint bank accounts asserting that they were husband and wife. During their relationship, the plaintiff contributed childcare and homemaking services, including cleaning, cooking, laundering, shopping running errands nad maintaining teh grounds surrounding the parties home, additionally, the plaintiff contribution personal property to the relationship or acquired through gifts or purchases during the relationship The plaintiff further alleges that in 1981 the def made their relationship so intolerable that she was forced to move from their home and their relationship was irretrievably broke. Subsequently, the defendant barred the plaintiff from returning to her business Holding: no clear evidence that the legislature indented sec 767 to apply to unmarried persons, we decline the invitation to extend the application of sec 767 to unmarried cohabitants. We therefore hold that the plaintiff has no stated a claim for property division under sec 767 -we conclude that the plaintiff in this case has pleaded the facts necessary to state a claim for damages resulting from the defs breach of an express or an implied in fact contract to share with the plaintiff the property accumulated through the efforts of both parties during their relationship. We merely hold that she be given her day in court to prove her claim -we conclude that the facts alleged are sufficient to state a claim for recovery based upon unjust enrichment -we hold that if the plaintiff can prove the elements of unjust enrichment to the satisfaction of the circuit court, she will be entitled to demonstrate further that a constructive trust should be imposed as a remedy -these allegations, together with the other facts alleged in the plaintiffs complaint (plaintiffs contributions to the property) and reasonable inferences therefrom, are sufficient under wisconsins liberal notice pleading rule to state a claim for an accounting of the property acquired during the parties relationship and partition. We merely hold that the plaintiff has alleged sufficient facts in her complaint to state a claim for relief statutory or common law partition

Esteves v esteves

Facts: this appeal deals with the proper division of the proceeds from the sale of a one-family house held by a tenancy in common, with plaintiffs, the parentis of defendant owning one-half of the hosue and defendant owning the other half. They took title as tenants in common, with manual and flora owning a ½ interest and Joao earning the other ½. Joao undertake a considerable amount of work involving repairs and improvements while he lived there. Sale of the house produced net proceeds of $114,000. With the parties unable to agree and distribution of the proceeds, they agreed to take each $10,000 and deposit the remaining $94000 in escrow Rule: on a sale of commonly owned property, an owner who has paid less than his pro rata share of operating and maintenance expenses of the property, must account to co-owner who has contributed more than his pro rata share, and that is true even if the former had been out of possession and the letter and possession of the property -the fact that one tenant in common occupies the property and the other does not impose is no obligation on the former to make any contribution to the latter. All tenants in common have a right to occupy all of the property and if one chooses not to do so, that does not give him the right to impose an occupancy charge on the other -notwithstanding those general rules, when on a final accounting following sale, the tenant who had been in sole possession of the property demands contribution toward operating and maintenance expenses from his co-owner, fairness and equity dictate that the one seeking that contribution allow a corresponding credit for the value of his sole occupancy of the premises -the party seeking the credit for the others occupancy of the property has the burden of demonstrating the actual rental valye of the property enjoyed by the occupying co-tenant Reasoning: the court should offset a credit for the reasonable value of the occupancy enjoyed by the parents over the approximately 18 years while they another son occupied the property. The application to present evidence of that value which would normally be represented by rental value of the property, rests on the defendant. Although no such proof was presented at the prior trial, it would be unreasonable to deprive the defendant of the opportunity to do so now Holding: that one plaintiff sought reimbursement from defendant for ½ of the costs of occupying and maintaining the premises, plaintiffs were required to allow defendant credit for the reasonable value of their occupancy of the house -accordingly, the matter is reversed and remanded to the trial court for further proceedings at which the defendant shall have an opportunity to present evidence related ot the value of the plaintiffs sole occupancy of the property

Food lion inc v. capital cities/ABC inc

Facts: two ABC television reports, after using false resumes to get jobs at food lion inc supermarkers, secretly videotapes what appeared to be unwholesome food handling practices. Some of the video footage was used by ABC in a primtime live broadcast that was sharply critical of food lion. Food lion did not sue for defamation, but focused on how ABC gathered its information through claims for fraud, breach of duty of loyalty, trespass and unfair trade practices Holding: we affirm the judgment that dale and darnett committed a trespass Issue: whether the ABC defendants can be held liable for trespass -whether the north carolina UTPA applies -whether dale and barnetts consent to be in nonpublic areas of food lion property was void from the outset because of the resume misrepresentations Rule: it is a trespass to enter upon antohers land without consent. Even consent gained by misrepresentation is sometimes sufficient. The consent to enter is canceled out, however, if a wrongful act is done in excess of and in abuse of authorized entry -testers are not trespassers even if they are private persons not acting under color of law -the north and south carolina courts make clear that the law of trespass protects the peaceable enjoyment of property. It is consistent with the principle to hold that consent to enter is citiated by a wrongful act that exceeds and abuses the privilege of entry Reasoning: we have no found any case suggesting that consent based on a resume misrepresentation turns a successful job applicant into a trespasser the moment she enters the employers premises to begin work -they went into areas of the stores that were not open to the public and secretly videotapes, an act that was directly adverse to the interests of their second employer, food lion Holding: the jurys finding of trespass therefore cannot be sustained on the ground of resume misrepresentation -the jury also found that the reporters committed trespass by breaching their duty of loyalty to food lion as a result of pursuing their investigation for ABC. We affirm the finding of trespass on the ground because the breach of duty of loyalty- triggered by the filming in non-public areas, which was adverse to food lion- was a wrongful act in excess of dale and barnetts authority to enter food lions premises as employees -thus, they breached the duty of loyalty, thereby committing a wrongful act in abuse of their authority to be on food lions property

harper cont

Holding: we conclude that under the maryland act the appropriate analysis to be applied is the source of funds theory Facts: husband, then unmarried, purchased an unimproved parcel of real property. Before his marriage, the husband made all of the payments that came due. During the marriage, the husband continued to make all of the payments that came due until all of the requisite payments had been made. The husband personally built a house upon the real property. That house was used by the parties as their marital residence. Although the wifes name appeared on the mortgage and she was legally obligated under it, the husband made all of the mortgage payments that came due on the marital residence. The husband paid for all of the expenses associated with the upkeep and repair of the marital residence A decree was entered granting the wife an absolute divorce and a division of real property. The trial court declared that the real property consisting of the lot with the marital residence upon it was marital property and ordered a sale in lieu of partition with each party receiving one half of the proceeds of the sale

Raleigh ave beach association v atlantis beach club

Issue: the right of the public to use a 480 foot wide stretch of upland sand beach in lower township, cap may county, owned and operated as a private club Holding: we hold that in the circumstances, the public trust doctrine requires the atlantis property to be open to the general public at a reasonable fee for services provided by the owner and approved by the dept of environmental protection -we hold that the Atlantis upland sands must be available for use by the general public under the public trust doctrine Facts: persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The dry sand beach area lies beyond the dunes and extends to the mean high water line. Tony labrosciano was issued a summons for trespassing when he attempted to leave the wet sand area and walk across the atlsntis property to the eastern terminus of Raleigh ave in order ro take the most direct route back to his home. Atlantis filed an order to show cause and verified complaint against labrosciano, seeking to enjoin labrosciano and members of his class from trespassing entering onto and accessing the atlantis property Rule: the public trust doctrine derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people ot use -at least where the upland sand area is owned by a municipality and dedicated to public beach purposes a modern court must take the view that the public trust doctrine dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible -the extent of the publics interest in privately owned dry sand beaches may include both a right to cross such privately owned beaches in order to gain access to the foreshore and a right to sunbathe and generally enjoy recreational activities on the dry sands -reasonable access to the sea is integral to the public trust doctrine -a bathers right in the upland sands is not limited to passage and that reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed -use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine -precisely what privately owned upland sand area will be available and required to satisfy the publics rights under the public trust doctrine will depend on the circumstances. Location of the dry sand area in relation to the foreshore, extent and availability of publicly owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand -we find that the public must be given both access to and use of privately owned dry sand areas as reasonably necessary. Private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand

Reicherter v mccauley

Issue: we must decide if one joint tenant, 10 days before his death, can effectively destroy a joint tenancy interest in a tract of real estate and replace it with a tenancy in common by signing a quitclaim deed to himself and giving it to his lawyer for recording -whtether Richards delivery of the quitclaim deed to his attorney effectively severed the joint tenancy or whether the failure to record the deed until after Richards death thwarted Richards intent Holding: guided by the clearly manifested intent of the party making the convenience here and because jointly owned property is freely transferable, we hold that the transfer of title was effective upon delivery of the day to the grantors lawyer for recording -this reasoning leads us to rule in favor of Richards estate. Upon effective delivery during the grantors life, a quitclaim deed by a joint tenant to themselves as a tenant in common effectively severs the joint tenancy and creates a tenancy in common. Obviously, because of the facts of this case, we limit this ruling to a case where there are just two joint tenants Facts: Richard reicherter and his cousin douglas reicherter acquired an 80 acre farm as joint tenants with rights of survivorship. Years later, when Richard was residing in a care facility, he signed a quitclaim deed that conveyed his interest in the 80 acres to himself in an apparent attempt to sever the joint tenancy and create a tenancy in common. Richard died. There was no express agreement between Richard and douglas preventing Richard from severing the joint tenancy. Douglas and his wife filed a quiet title action sekeing title to the entire 80 acres Rule: there are two ways to jointly owned property in Kansas, either as tenants in common or as joint tenants with rights of survivorship. When considering the ownership of real estate, the law presumes a tenancy in common is created unless the date or other convenience creating the estate unequivocally conveys a joint tenancy to two or more persons or entities -a joint tenant can self convey and thus destroy a joint tenancy in this case where there are just two joint tenants -under Kansas law, it is clear that any joint tenany may unilaterally sever their joint tenancy interest in real property and create a tenancy in common by conveying their interest to a third person -whatever interest a joint owner has in real estate it is freely transferrable, that is, it can be sold or given to someone else. There is no need for the party seeking transfer of owenrshio to first give notice to, or obtain the consent of, the remaining tenant to effectuate the conveyance -where are the intent to create a joint tenancy is clearly manifested, a joint tenancy may be created by a transfer to persons as joint tenants from an owner or a joint owner to himself and one or more persons as joint tenants. A self conveyance can create a joint tenancy. The all important factor is the clarity with which the grantors intent is expressed at the time the transaction is initiated -just as a grantor can create a joint tenancy by unilaterally transferring ownership to themselves, so should a grantor be able to sever a joint tenancy through Self conveyance -unilateral self conveyance severs a joint tenancy and have dispensed with the old requirements of deeding property to a strawman Reasoning: there is no question here that before Richards death, he and douglas owned this 80 acre farm as joint tenants -we have no doubt that Richard intended to sever the joint tenancy

Carr v deking

Issue: whether a tenant in common who refuses to join in a lease executed by the other tenant in common is entitled to eject the lessee Facts: joel carr and his father George carr, now deceased, owned a parcel of land in Lincoln county as tenants in common . the cars leased the land to Richard deking pursuant to a year to year oral agreement receiving one third of the annual crop as rent. Joel carr gave notice to mr deking that his tenancy would terminate at the end of the 1987 crop year. Mr deking responded that he would retain possession pursuant to the written lease with George carr. In July joel commenced this action to declare that no valid lease existed. Mr deking had no right to harm the land and he should be required to vacat ethe land at the end of the 1987 crop year Rule: each tenant in common of real property may use, benefit and possess the entire property subject only to the equal rights of co-tenants. That's, a cool tenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. Then I'm joining cotenant is not bound by this lease of the common property to third persons. The lessee steps into the shoes of the leasing cotenant and becomes a tenant in common with the other owners for the duration of the lease. Non-joining tenant may not demand exclusive possession as against the lessee, but may only demand to be let into co-possession holding we find joel is not entitled to eject mr deking from the property. The propert remedy is partition and until that occurs, mr deking is entitled to farm the land under the lease. Joel clearly has the right to that remedy -in view of our holding that the trial court properly denied joel's effort to eject mr deking, joel carr is entitled to the benefit of the deking-george carr lease, at his election, until a partition of the property occurs. Joel cannot claim the benefits contained the deking-george carr lease without also acceoting the other terms of that lease. If he elects to be governed until partition by the prior oral lease with mr deking, then the trial courts ruling is affirmed. If joel carr elects to be governed until partition b the deking-george lease, them the judgment shall be so modified by the trial court

Harper v harper

Issue: whether real proeprty, purchased under an installment contract and paid for in part before marriage and in part during marriage, is marital property -whether a marital residence constructed on that real property during marriage is marital property Rule: marital property is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired proper to the marriage, property avquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources -non-monetary contributions within a marriage are real and should be recognized in the event that the marriage is dissolved or annulled -the proposed act established the concept of marital property as being all that property which was acquired by the parties during their marriage and gave the court the power to recognize non-monetary as well as monetary contributions of the parties to the marriage in determining the value of and making an equitable distribution of the marital proeprty -the partnership theory, upon which the law of community property and this provision of the uniform marriage and divorce act is based, requires that the marital estate be entitled to a proportionate share in the value of property where its equity interest was partially acquired by marital funds. Where the marital estate chooses to invest its funds in certain property together with nonmartial funds, the marital estate is entitled to a proportionate return on its investment -under that theory, when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital. Thus, a spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the proerty. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment -it is necessary to adopt an interpretation that defines the term acquired, appearing as the ongoing process of making payment for property. Under this definition, characterization of property as nonmarital or marital depends upon the spource of each contribution as payments are made, rather than the time at which legal or equitable title to or possession of the property is obtained -the property and the marital residence are nonmarital in the ratio that the nonmarital investment in teh property and the residence bears to the total nonmarital and marital investment in the property and the residence. To the extent that the proeprty and the residence are nonmarital, their value is not subject to equitable distribution. Similarly, the proeprty and the marital residence are marital in the ratio that the marital investment in the property. To the extent that the proeprty and th residence are martial, their vlaye is subject to equitable distribution. When making an equitable distribution of he value of the marital property, the contributions, monetary and nonmonetary of each spouse,m the value of the property interests of each spouse, and the effort expended by each spouse in accumulating the marital property, among other things, shall be considered

obrien cont

Issue: whether that license, acquired during their marriage, is marital property subject to equitable distribution under domestic relations law Holding: we now hold that plaintiffs medical license constitutes marital property within th meaning of domestic relations law and that it is therefore subject to equitable distribution pursuant to subdiv 5 of that part. -question certified answered in the negative Meyer concurrence •a professional in training who is not finally committed to a career choice when th e distributive award is made may be locked into a particular kind of practice simply because the monetary obligations imposed by the distributive award made on the basis of the trial judges conclusion as to what the career choice will be leaves them no alternative •The equitable distribution provisions of the domestic relations law were intended to provide flexibility so that equity could be done -but if the assumption as to career choice on which a distributive award payable over a number of years is based turns out not to be the fact, it should be possible for the court to revise the distributive award to conform to the fact

sawada cont

Kidwell dissent •The majority reaches its conclusion by holding that the effect of the married womans act was to equalize the positions of the spouses by taking from the husband his common law right to transfer his interest, rather than by elevating the wifes right of alienation of her interest ot place it on a position of equality with the husbands . I disagree •The judgment creditors of either spouse may levy and execute upon their separate rights of survivorship •I feel that the resultants restriction upon the freedom of the spouses to deal independently with their respective interests is both illogical and unnecessarily at odds with present policy trends -Accordingly, I would hold tha the separate interest of the husband in entireties property, at least to the extent of his right of survivorship, is alienable by him and subject to attachment by his separate creditors, so that a voluntary conveyance of the husbands interest should be set aside where it is fraudulent as to such creditors

olivas cont

Reasoning: husband had the burden of proving constructive ouster in this case -there was substantial evidence to support the inference that husbands purpose in leaving the community residence was to live with a girlfriend and his departure was the reason wife filed for divorce; he was not pushed out but pulled. Also, the delay of several years before husband demanded any rent from wife supports an inference of abandonment of his interest in occupancy. In short, the evidence was conflicting and did not compel a finding of constructive ouster Holding: we must sustain the district courts ruling against husband unless the evidence at trial was such as to compel the district court to find ouster -the language could also be construed as referring to husbands abandoning the home to live with another woman. We choose the construction of this finding because in the case of uncertain, doubtful or ambiguous findings, and appellate court is bound to indulge every presumption to sustain the judgment -we are comfortable in assuming that the district court applied the proper role of law and against during the district courts finding compatibly with its rejection of husband's proposal conclusion of law that there was a constructive ouster

watts cont

Rule: a contract will mot be enforced however if it violates public policy. A declaration that the contACT is against public policy should be made only after a careful balancing, in the light of all the circumstances, of the interest in enforcing a particular promise against the policy against enforcement -the family code does not preclude an unmarried cohabitant from asserting contract and property claims against the other party to the cohabitation. Public policy does not necessarily preclude an unmarried cohabitant from asserting a contract claim against the other party to the cohabitation so long as the claim exists independently of the sexual relationship and is supported by separate consideration -an action for unjust enrichment, or quasi contract, is based upon proof of three elements: (1) a benefit conferred on the defendant by the plaintiff, (2) appreciation or knowledge by the defendant of the benefit, and (3) acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit -unmarried cohabitants may raise claims based upon unjust enrichment following the termination of their relationships where one of the parties attempts to retain an unreasonable amount of the property acquired through the efforts of both -A Constructive trust is an equitable device created by law to prevent unjust enrichment -when any of the owners of personal property in common shall desire to have a division and they are unable to agree upon the same an action may be commenced for that purpose. Anyone owning property in common with someone else can maintain an action for partition of personal property held by the parties Reasoning: while not condoning the illicitly sexual relationship of the parties, many courts have recognized that the result of a courts refusal to enforce contract and property rights between unmarried cohabitants is that one party keeps all or most of the assets accumulated during the relationship, while the other party, mo more or less guilty, is deprived of proeprty which they know has helped to accumulate -courts have recognized that money, property, or services (including housekeeping or childrearing) may constitute adequate consideration independent of the parteis sexual relationship to support an agreement to share or transfer property -the plaintiff has alleged that she and the dfendant were engaged in a joint venture or partnership, that they purchased real and personal property as husband and wife and that they intended to share all the property acquired during their relationship

denny cont

Rule: title II entitles individuals to the full and equal enjoyment fo the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin. It sets fourth a comprehensive list of establishments that qualify as a plcae of public accommodation and in so doing excludes from its coverage those categories of establishments not listed Places of public accommodation include: (1) hotels and other businesses providing lodging to transient guests, (2) restaurants, (3) places of exhibition or entertainment and (4) establishments that are, inter alia, within a covered establishment. -section 2000a defines place of public accommodation to include any motion picture house, theater, concert hall. Sports area, stadium or other place of exhibition or entertainment -plain text King dissent •The majority fails to adhere to controlling precedent and accord proper effect to the broad statutory language of title II -Its reasoning relies on a crucial factual misapprehension- that the red door spa is merely a hair salon when in fct it is much more •The public accommodation statute guarantees that, in this country, all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodation of any place of public accommodation, as defined herein, irrespective of their race or color -The supreme court has recognized that the statutes overriding purpose is to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public •A natural reading of its language would call for broader coverage •The court in Daniel however specifically rejected to the primary objects of congress' concern •It is entirely reasonable ot conclude that Elizabeth arden in naming the red door spa, used the term spa in its normal sense, and that a particular purpose of the spa is providing services that relax, amuse and divert its patrons

Tenancy in common

The following transactions create a tenancy in common: 1. O to A and B 2. O to A and B as tenants in common 3. O to A and B with A having a 25% undivided share and B having a 75% undivided share 4. O to A.B, and C 5. O leases to A and B (who becomes roommates) 6. O dies without a will and the property transfers by operation of law to O's five children by intestate succession •A tenancy in common is the default co-ownership structure -The estate can be created without specific language identifying it and can arise simply from the circumstance of property being owned by more than one person •Each co-owner has the right to possess the whole property -For example, if A wants to be in the kitchen at the same time B wants to be in the kitchen, neither can exclude the other- both are legally entitled to be in that space -In the absence of an agreement to the contrary, a right of co-possession to the entire property is a basic feature •In addition, a tenant in common owns a portion (or share) of the underlying property -The shares are usually calculated based on how much each person contributed to the acquisition of the asset -Some states initially presume equal shares based on the number of owners, but this is rebuttable with evidence of how much each contributed toa acquisition costs -If a tenancy in common is created by way of gift, then the share of ownership is dependent on how much the donor intended to transfer •A tenant in common has the power to transfer their share independently and can do so without the consent or knowledge of the other owners -Shares are transferrable by gift or sale during life and death -The deceased owners share descends by will or intestate succession, often to their family •If co-owners wants to end the property relationship altogether and the parties cannot agree on terms, any owner can seek a judicial partition -In a partition, a court can either physically divide the property or order a sale of the property and divide the proceeds -This allocation is based on the underlying shares of ownership

Tenancies by the entireties

•A tenancy by the entireties operates quite differently in terms of the power to transfer -Some freedom to transfer is traded off for collective decision-making and security -The estate cannot be severed by one spouse acting alone, and a partition is unavailable unless there is a divorce -Also spouses who own as tenants by the entireties do not have the power to grant a third party any interest in the property without mutual consent -One important consequence of this lock-in feature is that a creditor cannot reach property held as tenants by the entireties when the debt is owed just by one spouse -If a creditor obtains a right to collect a debt against property (called a security intertest or a lien), that right is a kind of property interest itself -Since one spouse alone cannot grant an interest in tenancy by the entireties property, no security interest will be recognized while the estate Is intact

ADA

•ADA prohibits discrimination in employment and public accommodations based on disability, but also imposes affirmative responsibilities on both employers and places of public accommodation to make reasonable accommodations and comply with certain accessibility requirements -Public accommodations are required to take affirmative steps to ensure that persons with disabilities are able to participate fully in public life -Under the ADA, the privately owned places of public accommodation had to bear the costs associated with compliance •Where removal of the barriers is not easily accomplished without much difficulty or expense, a covered establishment is still required to make such goods, services, facilities, privileges, advantages or accommodations available through alternative methods 42 USC 12182 7. public accommodation The following private entitles are considered public accommodations for purposes of this chapter, f the operations of such entitles affect commerce- Hotel or place of lodging Restaurant, bar; Motion picture house, theater, concert hall. Stadium Auditorium, convention center; Bakers, grocery store, shopping center; Laundromat, bank, neauty shop; Station used for specified public transportation; Museum, library, gallery; Park, zoo, place of recreation; Nursery, school; Day care center, senior center, homeless shelter; Gym, health spa, exercise place 12187 The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under title II of civil rights act or to religious organizations or entitles controlled by religious organizations

property law at divorce

•Alimony, or as it is frequently referred ot today, maintenance- a post divorce obligation that can be awarded in addition to property division -Although the legal standards vary by state, typically alimony is payable if the claimant can demonstrate that they need support to maintain the standard of living of the marriage, is unable to support herself through reasonable employment and the other spiuse has the ability to pay -In its contemporary applications, alimony awards, if granted at all, tend to be short in duration and modest in amount -When calculating the value of the package, be aware that alimony is taxable to the recipient spouse, unlike property transfers

Joint tenancy with the right of survivorship cont

•Another common situation also causes unities problems -Because the grandfather already owned black acre before the transfer, he did not acquire his interest at the same time and in the same doc as the granddaughter. This problem can be solved by a use of a strawperson -The grandFather could transfer his interest to another person and then that person could transfer the property to grandfather and granddaughter as joint tenants -The modern approach lets go of this •Another important characteristic of a joint tenancy is that the right of survivorship can easily be destroyed -Once a joint tenancy is in place, it can be changed- not by a will- but rather by the conduct of one of the owners during her lifetime -If a joint tenant transfers her share, then the ownership structure is severed, the right of survivorship is extinguished with regard to that share, and the grantee becomes a tenant in common with the other co-owners •Joint tenants have the power to transfer their share during their lifetime, and can convert their ownership interest into a tenancy in common -Such a transfer can even be made in secret -Indeed, many states allow self declared transfers in a deed, so an owner can simply declare "I transfer from myself as joint tenant with a right of survivorship to mYSELF as tenant in common" -This makes the right of survivorship extinguishable during the lifetime of the co-owners -Owners can also end their priorty relationship by seeing a partition to divide the assert or its value •If the problem just says they are joint tenants, still a tenancy in common. Need "survivorship" language

Property law at divorce

•At least some property is presumptively jointly owned and title does not control who owns property -Put another way, spouses often co-own some property even if title is in just one spouses name -Most states have adopted a dual classification model that differentiates marital from separate property: ->Marital property- all property acquired after the date of marriage until the end of the relationship (such as at separation or divorce, varies by state ->Separate property- property acquired before marriage or after its dissolution, or by gift or inheritance to one spouse (or other exceptions , per statute) •a minority or states have a broader definition of community property and include all property whenever and however acquired as in the pot for distribution between spouses at divorce -in these so called "all property" or "hotchpot" states, even property that was owned by one spouse before marriage and kept in that spouses name alone is subject to division -That said, legal decision-makers in hotchpot states may take into account when and how property was acquired when dividing property, and so the outcomes can be similar to those in material or community property states •There are three basic steps in a divorce that family lawyers frequently engage in to help their clients 1. identify property that will be divided. Either marital/community property or hotchpot approach 2. Determine the value of the property- per asset and title estate 3. Divide the property equitably- consider list of factors •The last step is to allocate the property between the spouses -The vast majority of the states divide property based on what is fair under the circumstances based on a non-exhaustive list of factors to consider -If the debt is acquired during marriage, there is a rebuttable presumption that it is a marital debt

Shared bank accounts

•Ex. Consider the situatin where a father creates a joint bank account by adding his daughter to an account he previously owned alone •The ownership structure depends on what the father intended •The formal language or category selected on the account is some evidence of intent -Hoeever, it does not always reflect true intent- owners may greatly misunderstand how the accounts operate and in any event title is not determinative -Many states follow two rules from uniform probate code: first, an owner's share of a bank account is based on their contributions to the account, unless there is clear and convincing evidence of a. Gift or of different intent -So a tenancy in common arrangement is presumed during the lifetime e of the co-owners -Co-tenant rights and obligationsSecond, the surviving joint tenant owns the balance in the account upon the death of the other owner, unless there is clear and convincing evidence to the contrary

Denny v. Elizabeth Arden Salons, Inc.456 F.3d 427 (4th Cir. 2006)

•Facts: African-American women brought mother gift packages to beaty and day spa; when try to add hair coloring, she was told there was a "problem" because the salon did not "do black people's hair." The family brought suit under the Civil Rights Act which prohibited discrimination in any place of public accommodation. •Issue: Are Elizabeth Arden Salons a place of public accommodation under Title II of the 1964 Civil Rights Act? Statute is silent on whether beauty salons or spas are covered. •Rely on provision that a salon is a "place of entertainment" which is defined as including "any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment." •Holding: The court acted properly in dismissing; the salon is not a "public accommodation" under the CRA. Could sue under section 1981 •Reasoning: To determine meaning of a statute, start with the text; use statutory canons (that you would learn in Legislation course) to interpret ambiguous provisions of a statute •Here, Congress delineated the entities that fall within Title II and courts can't go beyond plain text •Salons bear little relation with places of entertainment mentioned in the statute which suggests they do not fall within catchall phrase "other place of exhibition or entertainment"; cite to dictionary as well •Congress included hotels and restaurants and chose not to include salons; if entertainment was to be read expansively, why even mention hotels? It would have been easy for Congress to include salons and barbers •Salon's reason to exist is not entertainment •Dissent takes expansive view: language is broad; salon is much more than hair salon; it is a place to relax; look to purpose of public accommodations statute to remove discriminatory denials of service

Donovan v. Grand Victoria Casino & Resort (Majority Rule)

•Facts: Casino riverboat offers blackjack. Donovan is a card counter. They want to exclude him from the casino and he files for a declaratory judgment that they can't exclude him from counting cards and entering the casino. •Issue: At common law, Indiana businesses have an absolute right to exclude visitors, subject to civil rights statutes. Does owner of riverboat casino have right to exclude card counter from premises? •Holding: In Indiana, the common law rule of absolute right to exclude allows riverboat casino from excluding a patron who counts cards. Owner of property has unconditional right to exclude others •Reasoning: This case is opposite from the Uston case in New Jersey. Donovan is the majority rule; Uston the minority •Compare to Bailey case: Owner of theatre is engaged in private business and under no obligation to serve public; can exclude from theatre; theatre owner is not the same as the innkeeper and under no implied obligation to serve the public and under no duty to admit people •Just because property opened to the public does not mean it loses character as private property •Unlike NJ case, Indiana has never recognized a public right of access to private property; NJ case held that common law right of casino to exclude outweighed by right of access •Proprietors of amusement facilities whose survival depends on bringing public in are "reasonable people" who won't exclude unless they have reason to do so •Casino owner must be able to control admission to facility without risk of lawsuit and necessity of proving that every person excluded would engage in some unlawful activity. •Such decisions are matters of business judgment and should be remedied by competitive markets, not courts.

Uston v. Resorts Intl Hotel (Minority Rule)

•Facts: Ken Uston was famous blackjack card counter; Casinos banned him as he reputation grewand he sued claiming a right of reasonable access; Court affirmed casino's arbitrary right to exclude. Barred from the casino, not the hotel. •Issue: Suing in New Jersey, does Uston's have a claim of a reasonable right of access where the casino is held open to the general public? •Could have sued under innkeeper exception. Why not do that? •Innkeeper exception based on emergency and exigency; needed to ensure free flow of commerce •Holding: In New Jersey, Uston wins; NJ Supreme Court recognized reasonable right of access where casino held open to general public •Reasoning: Right to exclude at common law is "substantially limited" by competing claim of reasonable access to public places •At earlier point, NJ had absolute right to exclude by reason of precedent more than policy. Eject anyone for any reason for theater for example. But over time policy that the more private property is devoted to public use the more it must accommodate everyone; precedent of white supremacy •When property owners open premises to general public, they have no right to exclude people unreasonably; rather they have duty not to act in arbitrary or discriminatory manner toward persons; this duty applies not just to common carriers, innkeepers, etc but all property owners who open premises to the public; •Property owners have no legitimate interests in unreasonably excluding particular members of the public when they open premises for public use •Can still exclude intoxicated, etc. ; can still exclude those who will disrupt business or threaten security •Why should hotel be forced to serve customers who are bad for business? Must buffet admit bus of competitive eaters?

History of Nondiscrimination Laws

•Fourteenth Amendment guarantees equal protection of the law and prohibits states from treating individuals differently absent sufficient reason; also prohibited by due process clause of 5thamendment, but this only protects govt action, not private. •Congress enacted Civil Rights Act of 1964 to reach private discriminatory conduct for employment and public accommodation. Fair Housing Act 1968 reaches conduct in housing market. •Civil Rights Act of 1866 mandated equal treatment on right to contract and to buy and sell real property; •Civil Rights Act of 1875 expanded this to include public accommodation and public transportation; •In 1883, Supreme Court found Civil Rights Act of 1875 unconstitutional that Congress did not have enforcement power under 14th amendment to cover private conduct; •In Plessy v. Ferguson, Court held that state laws mandating racial segregation did not violate the 14th amendment leading to Jim Crowe. •When Congress enacted 1964 CRA, it is based it on commerce clause not 14th amendment

Lifetime gifts

•Gifts made during the lifetime of the owner called inter vivos gifts •Gifts that are made at death by a will are called testamentary gifts -If a person dies without a will (interstate), then state statutes determine who will inherit property, with spouses, children and then other family members (typically related by blood) at the top of the list •A gift is voluntary and immediate transfer of something valuable from the gift giver( the donor) to the gift recipient (the done) that is not an exchange for something else -Because it is a one way transfer and not a mutual exchange, a gift is distinguishable from a contract •Testamentary gifts are completed only if they meet the basic requirements for a will: 1. A signed writing 2. With witnesses -In contrast, the legal requirements for making a lifetime gift are far more flexible -Except for real estate transactions a writing s not required and a gift can be inferred from the conduct of the parties involved •Three elements for a complete gift: 1. Intent- the donor must intend to make an immediate transfer of ownership 2. Delivery- the property must be transferred to the donee 3. Acceptance- the donee must accept a gift. However, state law often presumes acceptance unless there are facts to the contrary. (The presumption applies as long as the gift is unconditional and benefits donee, and usually applies even if the donee does not know of a gift until after it occurs) •Mom cannot change her mind because her gift once made is irrevocable

Sharing costs, benefits, and possession cont

•Going back to the mountain vacation house example, what happens if one co-tenant chooses to posess the property, but the other chooses to stay away -In the majority of states, no rent is owed by the in-possession tenant to the out of possession tenant in such circumstnaces -This is becaue the non-possessing tenant has not been deprived of th right to possession- not using te property was voluntary -That said, the tennt who lives on the property does enjoy the added benefit of sole possession of the property, rather than shared possession -In many states, a credit against expenses is available to relieve the non-possessing tenant of some responsibility for payment -To summarize, the tenant who is not living in the home would not be owed rent, but would have an expense credit -The rules change yet again if one owner ousts the other- by denying them access to the property -From that point on, rent is owed th the ousted tenant for that tenants share of the rental calue of the property -Ouster also starts the adverse possession clock running, and if the ouster goes on long enough without redress by the co-tenant whose rights have been violated, the ousting tenant becomes to the sole owner

Example RAP

•I convey my fee simple absolute in greenacre to omar for life, then to stella for life, then to the heirs of omar Doesn't violate RAP bc omar is life in being and we will know who omar's kids are when he dies/within 21 years of his life Omar gets a life estate, stella gets life estate future interest. (stella has a vested remainder in life estate) Grantor doesn't have a possibility of reverter bc possibility of reverter is only with fee simple determinable; they retained a reversion bc the remainder may never best (bc omar is still alive- his heirs are currently unascertainable) •To dee and her heirs provided that readacre is used for teaching reading to illiterate adults, then to my daughter lucy Since readacre could be used for reaching reading to illiterate adults for the next several hundred years and only then the condition breached, long after all the lives in being are dead, the executory interest violates the rule against perpetuities, therefore it is void under RAP. Therefore, dee has a fee simple absolute •I, julia, grant naomi any and all interest I have in greenacre. naomi died and left everything she owned to avery Avery has right to present possession because she inherited naomis estate. Naomi received a life estate pur autre vie (measured by the life of julia). A life estate pur autre vie continues for the length of the measuring life (julia). The life estate pr autre vie continued when naomi because julia was still alive so it passes to avery, naomis devisee •To elizabeth and her heirs in two weeks Elixabeth received an executory intrest, and grantor retains a fee simple subject to an executory limitation (grantor retains the present possessory interest, labeled a fee simple subject to EL since it is followed by a future interest in a transferee) Elizabeth has an executory interest because she will cut short grantor's fee simple after 2 weeks •1.Greenacre to Elena for life, then to Natalie and her heirs, but if amy does not survive Lydia, then to cora; 2. forestacre to Elena for life, then to Natalie and her heirs if amy survives Lydia, and not then to cora Natalie has a vested remainder in greenacre and a contingent remainder in forestacre •To ben so long as it is used as a school, and if such use ever ceases, then to carl, if he is then living Carl has an executory interest. RAP isn't violated bc interest must vest, if at all, within carl's life •To chuck for life, then to quinns widow for life, then to chuck children living at the time of quinn's widow's death Chuck's children's contingent remainder violates RAP bc quinn's widow is unascertainable Quinn's widow's contingent remainder is fine bc we will know who widow is by the time quinn dies

Conditional gifts

•If a gift is complete, the gift giver has relinquished his rights and typically cannot later take back the gift -It is possible to set up a conditional gift- so that if a condition is not met, the donee is not ultimately the owner and has to give back the gift •Most states treat engagement rings as conditional gifts -If the couple breaks up before they marry who owns the ring? The answer in most states is that the gift giver (the man) can rightfully claim ownership and it doesn't matter who called off the engagement -Most courts view engagement rings as implying a condition •Another widely recognized conditional gift as a gift causa mortis- a gift that is based on an assumption that the donor will die soon -There are four elements needed: 1. Donative intent; 2. Delivery; 3. Acceptance and 4; the donors expectation of imminent death -if these criteria are met, then the donor can revoke the gift at any time until death -Must die of same illness that they expect to die from -Also, if the donor has a miraculous recovery, and most states the gift is presumptively revoked, and the donor may even have to redeliver the gift to ensure that the Donee can keep it -Courts tend to be skeptical of these gifts - transfers shortly before death can trigger concerns about fraud

Property regimes during marriage and at death cont

•If a married person dies, again, most states have a separate property system -That means the person who dies (called the decedent) is the owner of any property in their sole name, or if an asset is co-owned, then the particular rules of the co-ownership structure apply -Property owned at death passes according to a will or by a right of survivorship if one has been put in place -if not, intestate succession laws are triggered that typically give the decedent's estate in shares to spouses and lineal descendants (children, grandchildren) or, if none survive the decedent, then to other blood relatives -In summary, spouse who dies can control the disposition of whatever property to the surviving spouse, then the surviving spouse can elect against the will and take a share od the decedents estate -The forced share, aka an elective share, varies by state, most typically it is one third of the estate of the pre-deceasing spouse •If a petition for divorce is filed, the separate property states convert to a marital property regime with equitable distribution of the estate that incorporates many core principles of community property •Community property law has a dual classification systme that distinguishes shared property from separately owned property •IN CONTRAST TO SEPARATE PROPERTY STATES, TITLE DOES NOT DETERMINE OWNERSHIP, AND ALL PROERPTY THAT IS ACQUIRED DURING MARRIAGE IS PRESUMED TO BE COMMUNNAL PROEPRTY -Exceptions to that norm must be proven and include property acquired before marriage and gifts or inheritances to one spouse, even during marriage, -Sepaeate property is owned individually by the spouse who has title to the asset -Each spouse co-owns community proeprty from the date of acquisition and has the power to dispose of their 50% share (but not more) at all times, including at death -there is no elective share in community property states, because a spouse does not have the power to control the other spouses half of the community property and so cannot attempt to disinherit the surviving spouse

Sharing costs, benefits, and possession

•In addition to a shrae of the underlying valye of the asset, each co-owner has the right to possess the entire property simultaneously with the other owners -Along with these benefits come obligations to pay a proportionate share of the operating costs of operating costs of the property, including mortgage payments and taxes as well as maintenance and necessary repairs -For ex. With $1000 monthly mortgage on a property that is co-owned in half shares, each owner would be liable for $500 per month -Similarly, if the property had a leaky roof, both owners are responsible to pay the cost of repairing the roof, in the same proportion as the underlying ownership shares (so half shares if there are two owners or one third shares if there are three owenrs) -Relatedly, co-owners have a duty not to commit waste by neglecting or destroying the property •Unlike repairs and maintenance, co-owners are not required to share the costs of improvements -Instead, the added value from any improvements can be claimed later by the owner who made the investment

Property regimes during marriage and at death

•In most states, very different property rules apply to married couples in different contexts: during an ongoing marriage; at death; and at divorce -Such states are called separate property or title states because the default rules during marriage and at death are that each spouse owns property separately and that the form of title to an asset determines ownership -So if one spouse alone is named on a bank account, then that spouse deemed the sole owner -Similarly, the earnings of a spouse are owned by the earner -the law assumes that spouses do not share property unless they take title as co-owners •During an ongoing marriage, the separate property rules are supplemented by a reciprocal support obligation between spouses that is quite limited -Typically the obligation is to provide only items that are necessary in light of the resources of the family, and is only applicable if the spouse seeking support cannot pay the bill independently and the creditor (such as a hospital) seeks payment from the non-debtor spouse -based on a theory of family privacy, the general rule is that the support obligation is not directly enforceable between the spouses while they remain married and living together

Non-discrimination laws

•In order to be subject to Laws prohibiting discrimination in public accommodations, a business must qualify as a public accommodation or an otherwise covered entity -A covered establishment may not discriminate against individuals who belong to a designated protected class -There are generally four parts of a public accommodation claim: 1. is the business covered by the law, 2. did the business discriminate, 3. is the plaintiff a member of a protected class, and 4. do an exceptions apply •The federal public accommodation laws provide the minimum amount of protection that a business must provide -State and local laws are free to provide greater protection, meaning that the level of protection may vary from jurisdiction to jurisdiction -The americans with disabilities act also imposes affirmative duties on business owners to make their establishments physically accessible to individuals with disabilities •The public accommodation laws have limited the common law right of business owners to exclude arbitrary -The owner of a covered establishment may exclude a customer for any reason or no reason, provided that the customer is not a member of a protected class -The ADA goes further and requires business owners to shoulder the costs of making their premises accessible to individuals with disabilities

Nondiscrimination Laws and Property

•Is the business covered by the law? •Federal covers only race, color, religion, or national origin; does not cover sex, sexual orientation, gender identity •Did the business discriminate? •Is plaintiff a member of a protected class? •Do any exceptions apply? •State laws more expansive than federal law as include additional protection for marital status, sexual orientation, gender identity, etc.; also expand reach of statutes to cover more establishments; not necessarily require a physical "place" •States differ in 1) definition of place of accommodation; 2) scope and number of protected class; 3) what actions constitute discrimination; and 4) the extent of exemptions for private/religious organizations •Robert v. Jaycees: Junior Chamber of Commerce was place of public accommodation even though non-profit under MN law which had specific definition; had to admit women on same terms of men when hearing D's argument that law violated 1st amendment right to free association •Dale v. Boy Scouts: Court agrees with Boy Scouts that under NJ law Boy Scouts was not a public accommodation and therefore it could discriminate on basis of sexual orientation; Court said law infringed on 1st amendment free association

Severance

•Like a tenant in common, a joint tenant with a right of survivorship can freely transfer his share during the lifetime of the owner (it is too late to attempt such a transfer at death) -This freedom includes the ability of one owner acting alone to sever a joint tenancy and extinguish the right of survivorship. -A transfer out of a tenants share to another person will accomplish this -At that point, the remaining co-tenant will own as a tenant in common with the new owner -Under the modern approach, a tenant can just transfer from herself as a joint tenant to herself as a tenant in common to produce the same result •Some states conclude that a lease or a mortgage does affect a severance, and therefore the owners become tenants in common -That means that the mortgage or the lease survives the death or the granting owner 9just as it would for any tenancy in common) -Other states reach the opposite conclusion. In such states a lease or mortgage does not sever a joint tenancy -Accordingly, if the leasing or mortgaging owner dies first, then the lease or the mortgage disappears at death and the surviving owner takes the property free of the lease or mortgage

Joint tenancy with the right of survivorship

•Like tenants in common, owners of a joint tenancy have a right to possess the entire property -The key distinguishing feature of this estate is the right of survivorship -If a co-owner dieds with this property structure in place, their share is extinguished at death, and that share is absorbed by the other owner(s) -A will cannot override this feature because by taking title in this for,, the parties have already determined that the suvivors among them will take ownership of the share of a predecessing co-owner -This is sometimes called a poor persons will •What if A owned a 40% share and B owned a 60% share? A joint tenancy would still exist under the modern approach that allows for differing shares and calculates shares based on contribution (just like for tenancies in common) -However, some states retain older traditional rules and will not recognize a joint tenancy if there are owners with unequal shares -In such states, a court would find that a tenancy in common exists, even when a joint tenancy is clearly intended -This is because traditional rules require four unitites to exist- the unities of time, title, interest and possession as follows: ->Time- all tenants acqurire their interests at the same time ->Title- all tenants acquire their interests in the same document ->Interest (equal shares)- all tenants have an equal ownership share (50/50) -> Possession- all tenants must have an equal right to possess the whole property

Tenancy by the entireties

•Like the joint tenancy by the entireties includes a right of co-possession and a right of survivorship -The same unities have also typically been required -Only married couples can own property as tenants by the entireties -A tenancy by the entireties and the right of survivorship cannot be disrupted (severed) by the choice of one spouse acting alone -Instead, a transfer of an interest in the property is valid only if both spouses agree -Only death, divorce or mutual consent will change the ownership form -A judicial partition is unavailable unless it occurs through (or after) a divorce -Absent partition, a divorce automatically converts the estate into a tenancy in common (this is because only married couples can own by the entireties and a divorce dissolves the marriage) -Forth, this lock in effect between spouses also provides some protection against creditors -In most states, the creditors of just one spouse cannot reach the property- it is immune from their claims -For example, if one spouse (the debtor spouse) borrows money from a bank and then defaults on the loan, the bank will not be able to seek collection for the loan against property held by the entireties -Overview: spouses only, co-possession, right of survivorship, cannot transfer along; no partition, creditor protection •The best practice for creating a tenancy by the entireties is to use explicit language -However, many states have a presumption that nay transfer to a married couple will create thus estate, even if the conveyance does not specifically say so -To overcome the presumption, there must be clear intent to create a different estate

law of trespass cont

•Nominal damages are awarded when the plaintiff has not suffered any compensable harm, but has prevailed in her claim -Compensatory damages are designed to make the plaintiff whole for the harm suffered -Punitive damages are awarded over and above compensatory damages to punish the defendant for her conduct and deter future wrongdoers -In a trespass claim, the plaintiff is not required to show harm -The wrongful interference with the owners right to exclude is sufficient to support a claim of trespass and will result in the award of nominal •Trespass is also a criminal offense -Trespass is typically a summary offense or a misdemeanor •Even if the non-owner enters as a licenses, he can beccome a trespasser, if the license is revoked -The owner then has the ability to call the police and have the non-owner forcibly removed -In this way, the owner of private property can use the power of the state to remove trespassers and enforce property boundaries

Partition

•People sometimes decide that it is best to terminate a co-ownership relationship -The property can be transferred to someone else, or the owners can agree to sell the property and divide the proceeds into shares -However, if the owners have conflicts that they cannot resolve, a judicial partition is available -if a partition claim is brought, a judge will either order the property physically divided into individually owned sub-parts (an in-kind division) or order the property sold and allocate the proceeds

State and local public accommodation laws

•States and municipalities have chosen to provide greater protection than the federal government in all four of the core areas of injury: 1. The definition of place of public accommodation, 2. The scope and number of protected classes, 3. What actions constitute discrimination and 4. The extent of exemptions for private and/or religious organizations -In certain circumstances, state and local public accommodation laws may impermissibly infringe on constitutionally protected rights, including the right to free association and expression guaranteed by the first amendment •In 1999, the new jersey supreme court held that the boy scouts organization qualified as a public accommodation and therefore could be required to refrain from discriminating on the basis of sexual orientation -The boy scouts appealed to the US supreme court, arguing that the application of the new jersey law impermissibly infringed on the organization's first amendment right to free expression -Unlike in Roberts v jaycees, the court agreed with the boy scripts and held that the application of the new jersey public accommodations law violated the organizations first amendment right to free expression

Homelessness

•The US dept of housing and urban development requires communities to conduct counts of homeless individuals on a single night in January -Known as a point in time count, this measure provides a snapchat of homelessness in the US •Homeless individuals staying with relatives or friends only have a mere license that is revocable at will -Homeless individuals who are squatting or living in abandoned buildings are trespassing and are subject to arrest or removal -In most states, private business owners enjoy the arbitrary right to exclude, provided it does not violate any non-discrimination protections •Homeless individuals can access public spaces, such as parks, transportation hubs, and sidewalks -However, they are often denied access to those spaces by application of criminal laws designed to combat vagrancy or loitering

Transfers by one co-owner

•The extent of a co-owners power to transfer her share depends on the kind of co-ownership structure that is in place -Recall that the main difference between tenants in common and joint tenants with the right of survivorship is the power to transfer at death -An owner of a tenancy in common has the power to transfer her share at their death -That is not the case with property owned as joint tenants -Instead, at the death of.a coptenant, the deceased persons interest will automatically pass to the surviving co-tenants •Both tenants in common and joint tenants have the right to transfer their share freely during life, and can do so without the consent or even the knlwoedge of the other owners -This can occur by a transfer out of her entire interest by way of a gift or a sale -Another option for this group is to transfer out a lesser interest such as a lease, a mortgage, or a life estate •A lifetime transfer by a joint tenant can have a major impact, because not only is the share transferred ot a new owner, but if there is a transfer out of all that the co-tenant owns, the structure of ownership is converted into a tenancy in common for the new owner and any remaining co-tenants -If ann oewner has a one-third interest and transfers that interest to another, there is a severance and it destroys the right of survivorship •Notice that the question of severance simply does not arise if there is a tenancy in common because there is no suvivorshio right to begin with -Nor can a severance occur in a tenancy by the entireties, because neirther spouse can transfer an interest alone- mutual consent, the death of a spouse, or divorce is required to change the structure of ownership

Resolving ambiguities

•The grantors intent generally determines which estate is created -rules of interpretation can provide some assistance -A tenancy in common is the default type of ownership and will be presumed unless there is sufficient evidence that a different estate was intended -So assuming a tenancy in common exists is a good starting place for your analysis (but remember that can be overcome by contrary facts) -Some insist that explicit language must be used to create a joint tenancy, including a clear identification of the right of survivorship -Other states are more flexible •Another rule of interpretation to keep in mind: in states that still require the four unities of time, title, interest and possession, and one of the unities such as equal fractional shares is missing, a tenancy in common will be formed even though a joint tenancy with a right of survivorship was clearly intended

Co-tenant rights and obligations

•The laws discussed here are the rules that apply by default -The parties can adjust or override these rules by contract -Tenants share both the costs and benefits of ownership -If there is a dispute, co-owners can seek a judicial accounting while ownership continues, or at its termination

Cohabitants and other family type relationships

•The majority of states merely recognize that cohabitants may make claims that tare generally available to anyone in civil law -A small number of states recognize claims based on the nature of the relationship itself, and tend to treat unmarried couples like married couples -as long as the relationship is deemed sufficient, divorce style property division may be ordered

The traditional law of trespass

•The owner of property has the right to exclude non-owners and deny them access to her property -This right is enforced through the tort of trespass -Trespass is defined as the intentional and unprivileged entry onto the land of another -An entry must be intentional, which means that an individual who is forcibly thrown onto the land of another or negligently enters the land of another will not be liable for trespass -In addition, the entry must also be unprivileged •An entry is considered privileged when the individual has permission to deter or the law otherwise authorizes the entry -For example, an individual will generally not be liable for trespass if she enters the land of another to stop a crime or save a life -An individual may also be privileged to enter the land of another to recover personal property, which is sometimes referred to as chattel, provided that the property is not there as a result of that individuals actions or negligence •When an owner of property grants an individual permission to deter her property, the grant of permission is called a license -The individual who is granted permission is referred to as the licensee -a license is considered a property interest, but it is relatively fragile, because the grantor of the license can revoke it for any reason, which is why a license is said to be revocable at will -A limited exception to this rule, called an easement by estoppel

non-discrimination laws cont

•The public accommodation laws reflect our strong commitment to equality that is embodied in the equal protection clause of the 14th amendment -Broadly stated, the 14th amendment guarantees equal protection of the law and prohibits states from treating individuals differently absent a sufficient reason -The federal government is also prohibited from such behavior by the equal protection guarantees inherent in the due process clause of the 5th amendment -The constitution protects people from government action, but generally not from private action -Accordingly, congress enacted the civil rights act of 1964 to reach private discriminatory actions in the context of employment and public accommodations -Four years later, it enacted the fair housing act to reach private discriminatory conduct in the housing market •During the period known as reconstruction after the end of the civil war, congress tried to address private conduct -The civil rights act of 1866 mandated equal treatment of all citizens with respect to the right to contract and to buy and sell real property -The civil rights act of 1975 expanded this protection to include public accommodations and public transportation -Reconstruction ended in 1877 when the remaining federal troops where removed from southern states in the aftermath of a hotly contested presidential election -In 1833, in an 8-1 opinion, the supreme court found the civil rights act fo 1875 to be unconstitutional in the civil rights cases -The court held that congress did not have the enforcement power under the 14th amendment to regulate private actors -In plessy v ferguson, the court held in a 7-1 opinion that state laws mandating racial segregation did not violate the 14th amendment, leading to the spead of jim crow laws and the systematic disenfranchisement of african americans -Although brown v board of education rejected plesseys doctrine of separate by equal, the command of brown was not sufficient to dismantle longstnading discriminatory practices

Public policy limitations on the right to exclude non-owners

•The right to exclude is by no means absolute -There are numerous instances where public policy concerns impose limitations on the right of a private property owner to exclude non-owners -The limitations include the well established doctrine of necessity, where an intentional trespass is considered privilege when a non-owner enters the land of another to stop a crime or prevent bodily harm -Under this court made doctrine, the societal interests in preventing crime or harm outweigh the societal interests in respecting property boundaries -Limitations on the right to exclude have also been imposed by federal, state, and local statutes such as public accommodation laws that bar discrimination

Property open to the general public

•The traditional rule at common law was that innkeepers and common carriers were required to serve any customer who was able to pay for their services •The act of hanging out a sign and advertising that one served the public seems to have severely limited the owners right to exclude non-owners from his premises -The rule furthered the policy that travelers should be able to venture from home overnight without concern that they would be arbitrarily refused service and left with no place to sleep •The traditional common rule fo reasonable access held that the license granted to a customer of an innkeeper or a common carrier was not revocable at till -The owner could only revoke the license for good cause -A patron who was denied service was entitled to sue for damages •After the civil war, however, state courts, expecially in the south, began to apply a general rule of arbitrary exclusion that allowed business owners to exclude patrons for any reason or for no reason at all •Today the majority of states apply a right of arbitrary exclusion which allows business owners to refuse access for any reason, including reasins motivated by prejudices and stereotypes

lifetime gifts cont

•Three different types of behaviors described below qualify as delivery a. Actual delivery- a physical transfer of the gift, such as handling over a hundred dollar bill, a tie, or flowers b. Constructive delivery- the donee is given access to the gift, such as being provided the only key to open a locked box with the gift inside c. Symbolic delivery- transfer of an item that represents or symbolizes the gift, such as a deed, a letter of a photo. For ex, a handwritten note saying "my dear son, because I am so proud of your recent graduation from college, I hear by give you the new car I bought at the dealer today" is likely to be effective delivery under modern law •The donors intent to transfer is most important -Lack of delivery calls intent into question -Most courts - some form of delivery is still required

Beach access and the public trust doctrine

•Under the public trust doctrine, lands covered by tidal waters are deemed to be held in trust by the sovereign for the benefit of the general public -In the US, the individual states are deemed to hold the tidal lands in trust for the benefit of the public -As a deemed trustee, the gov owes a fiduciary duty to the public to maintain and protect the trust property or resource -The general public are considered the beneficial owners of the property •Although states draw the line in different places, they all begin with a concept known as the mean high tide line -In most states, all land below the mean high tide line is held in trust for the public -Courts sometimes talk about this line interchangeably with the line between the dry and the wet sand -It is the arithmetic average of high water heights over an 18.6 year metonic cycle -It is the line that is formed by the intersection of the tidal plane of the mean high tide with the shore •A few states use the mean low tide line to determine the public trust property -In these states, the public has a right to the tidal lands below the low tide mark, leaving only land that is covered by water •The majority of states do not grant any rights over the dry sand beach •Courts in Hawaii, Oregon and Texas have applied a doctrine known as customary use based on ancient, peaceful, uninterrupted and reasonable use of the beach