Issue and Answers In Cases:

Thomsen v. Greve: Issue: Is intentionally interfering with others' use and enjoyment of their home by subjecting them to odor and smoke a nuisance?

-A private nuisance is a non-trespassory invasion of another's interest in the private enjoyment of land. The invasion must be intentional and unreasonable for liability to exist.

Possibility of Reverter: Right of Entry: Exetuory interest:

-Fee Simple Determinable (AUTOMATICALLY BACK) -Fee Simple Subject to Condition Subsequent (Go get back if you want) -Transferee holds the future interest (never getting back)

Lohmeyer v. Bower: Do zoning ordinance violations render a property's title unmarketable?

-IN GENERAL NO, but here the house violated the zoning ordinance therefor the title is not marketable.

Vernon Township Volunteer Fire Department, Inc. v. Connor (Changed Conditions CC&Rs) Issue: Is a restrictive covenant invalidated by non-conforming activity that takes place outside the restricted tract?

-NO -Here the covenant prohibiting the sale of alcohol was still enforceable because they were still beneficial to the neighborhood.

Arkland v. Harper Issue: Is the economic value of property the decisive factor in determining whether to partition in kind or by sale?

-NO, ALL Jurisdictions with do a partition in Kind if they can. Standard of Proof to try to get a partition in Sale include 1) partition in kind is not convenient. 2) the sale will result in the promotion of at least one of the parties' interests; and 3) the sale will not prejudice the interests of the other parties. -HERE, the economic value of the property is not the EXCLUSIVE test to decide whether to partition in kind or by sale. -Longstanding ownership and sentitmental intereest may also be considered when deciding whether interests of the opposed party will be prejudiced by the sale

Feist Publications, Inc. v. Rural Telephone Service Co.: Issue: Is a phonebook arranged alphabetically sufficiently original to warrant copyright protection?

-NO, Facts can not be copyrighted and they just put the facts in a different order. (Not creative enough)

Sundowner v. King : Under common law, may a property owner erect and maintain a structure, not for any purpose useful to himself, but for the sole purpose of damaging a neighbor?

-NO, Spite Fence (fence build maliciously with sole purpose of intent to annoy, injure, or spit adjoining owner)

Fair Housing Council of San Fernando Valley v. Roommates.com Issue: Do the anti-discrimination provisions of the Fair Housing Act apply to the selection of roommates?

-NO, because roommates are people you live with and are exposed to ones privacies and safety reasons. -Under constitution, right to not associate is a liberty!!!

Nahrstedt v. Lakeside Village Condominium Association, Inc. (Unreasonableness Evaluation under a CIC) Issue: Whether a restriction in a condominium complex's rules which prohibits dogs or cats is unreasonable.

-NO, it is not unreasonable to create a restriction against animals. -Condominium rules generally are given a presumption of validity and will be enforced unless unreasonable, or if they are unconstitutional or against public policy. Such deference is appropriate because condominium owners are entitled to know that the restrictions on use in place at the time they purchased their units would be enforced.

Smith v. City of Little Rock Issue: Is rezoning a previously residential property in a residential neighborhood inherently arbitrary and capricious?

-NO, previously residential property. This means that the zoning ordinance no longer is present -It is not inherently arbitrary and capricious to rezone a previously residential property in a residential neighborhood. -There is a presumption that a zoning board acts reasonably and fairly when rezoning or refusing to rezone property.

Penn Central Transportation Co. v. City of New York (TEST) Issue: Whether the Landmarks Preservation Law as applied to Penn Central constitutes a taking for public use of the company's property that requires the payment of just compensation under the Fifth and Fourteenth Amendments.

-NO. 1) Economic Impact of Regulation 2) Extent that the regulation has interfered with Distinct Investment-Backed Expectations 3) Character of Governmental Use (Physical invasion will be looked at greater) Applying these principles to the present case, Penn Central's overall assertion that any economic restriction imposed on the use of their property under the Landmarks Preservation law constitutes a taking which requires just compensation is rejected. The economic impact of the law on Penn Central does not constitute a total diminution of the value of its property, as it can still generate revenue from renting out portions of Grand Central Terminal. It is merely prohibited from gaining additional revenue from leasing the airspace rights above the building.

Chapter 6: Concurrent Ownership James v. Taylor Issue: If an instrument of conveyance does not show an intent to create a right of survivorship, can the instrument create a joint tenancy?

-NOOOO!! Must say specifically "Joint tenancy" or clearly distinguish the intent of "right of survivorship"

Chapter 4: Cheny Brothers. v. Doris Silk May a fabric design be subject to protection from copying in the absence of copyright laws addressing the situation?

-No Fabric Designs can not typically be protected against copyright laws if they are not protected by a copyright or patent. Without the title, others may copy design as they please.

Chapter 10: Easment(Non Possessory Interests in Land) (implied) Emanuel v. Hernandez. Issue: May a court find an easement by implication if at the time the land was severed the use in question did not exist?

-No because there must be an existing, apparent, and continuous use of one parcel for the benefit of another parcel at the TIME of Severance (second element).

Brown v. Lober: ISSUE: Does a conveyor's failure to disclose the existence of paramount title amount to a constructive eviction?

-No it does not amount to contructive eviction, but a covenant is seisin does say that the grantor owns the estate that he purports to convey. (SOL bars the breach)

Chapter 9: Financing Real Property Sloan v. Calhoun: Issue: Does an alledged sale that is in fact intended to pl

-No, An installment-land-contract provision stating the buyer forfeits her property interest upon default of payment is unenforceable.

Wansley v. First National Bank of Vicksburg: Issue: Should a foreclosure sale be invalidated if the trustee is closely related to one of the parties?

-No, a foreclosure sale under a deed of trust will not be invalidated because the trustee is not a COMPLETE independent. -Sale of Real estate by a trustee of deed is upheld and accepted for deficiency judgment purposes if the sale is commercially reasonable in all aspects.

John v. McIntosh: Issue: Are land title transfers from Indian tribes to private individuals prior to the American Revolution recognized in a United States court?

-No, legal positivism takes over (property exists ONLY to the extent it is recognized by the government)

Messersmith v. Smith: Issue: Does a title instrument that was not recorded according to statutory requirements provide constructive notice of the transfer to a subsequent purchaser?

-No. Smith's recordation of his deed did not provide constructive notice to Frederick, because Smith's deed was not properly acknowledged. North Dakota is a race-notice jurisdiction. Thus, an unrecorded transfer of title to real property is void against a subsequent, good-faith purchaser.

Life Estate (Future Interest) : Fee Tail (Future Insteret)

-Reversion -Right to transfer estate till you die, then right back to bloodline.

Chapter 13: (Eminent Domain) Hawaii Housing Authority: Issue: Whether the "public use" requirement of the Takings Clause of the Fifth Amendment prohibits a state from taking, with just compensation, title in real property from private lessors and transferring it to private lessees for the purpose of reducing the concentration of ownership of private property.

-Under eminent domain governments are able to take property from private lessors and transfer it to private lesees for the purposes of reducing the concentration of ownership of private property.

Outster (Right of Occupancy)

-When a Cotenent in possession refused to allow another cotenant to occupy the propers, they could owe a "rent" to cotenant in possession.

When does Penn Central have NO place?

-When a regulation results in a physical appropriation of property there is a regulation taking... This does not matter if it is temporary. Union works have right to access a farm. Access regulation appropriates a "right to invade" and dimities a "right to exclude" Exceptions: 1) Isolated Physical Invasion 2) Government authorized invasion that is CONSISTENT with longstanding background restrictions on property rights 3) Situations where the government requires property owners to ceder a right to access as a condition of recovering certain benefits

White v. Brown: Issue : Will a fee simple absolute be passed through a will, if said will's terms are ambiguous?

-YES

Eyerman v. Mercantile Trust: Issue: When a landowner attempts to compel his successor in interest to do to the land something against public policy, may a court deem the condition void?

-YES, 1) difference between a alive and dead person's right to use/destroy, 2) A well-ordered society can not tolerate the waste and destruction of resources when such acts directly affect the important interests of other members. (SUBSTANTIAL VALUE)

Jacque v. Steenberg Homes: Can punitive damages be awarded without compensatory damages in intentional trespass cases?

-YES, because they intentionally tresspassed on their land and we must punish them for their harm because it is not about the harm that is done to the land, it is about a property owners right to exclude!

Loretto v. Teleprompter Manhattan CATV Corp. (Physical: Wire on Apartment Building to Get TV) Issue: Does a minor but permanent physical occupation of an owner's property authorized by the government constitute a "taking" of property for which just compensation is due under the Fifth and Fourteenth Amendments to the United States Constitution?

-YES, does not matter if it is 'minor', the fact that the physical occupation of the owner's property was PERMINANT is enough to constute as a "taking" of property that requires just compensation.

Chapter 7: Leasing Real Property Issue: Does the Fair Housing Act prohibit entities from making housing decisions that have a disparate impact on a protected class, even if this impact is not intended by the entities making the decisions?

-YES, the intention does NOT matter.

Kelo v. City of New London (Broad Construction Eminent Domain) Issue: May a state exercise its eminent-domain authority to condemn private property and sell it to private developers for the purpose of creating new jobs and increasing tax revenues without violating the "public use" requirement of the Fifth Amendment?

-YES, under the broad construction of the term public use, eminent domain for economic development purposes is allowed.

Marcus Cable Associates, L.P. v. Krohn (Express Easment) (Servitute Rights) Issue: May an express easement only be used for the purposes specified in the easement's terms according to their common meaning?

-YES. BUT the manner, frequency, and intensity of an easement use may change over time to accommodate technological development. Changes must fall within the purposes for which the easement was created, as determinate by the grant terms .

Berge v. State of Vermont: (Easement by Necessity) Issue: Is water access alone generally sufficient to defeat a claim for an easement by necessity?

-Yes (under reasonable necessity majority) because water is not a sufficient substittute for road access. -Not consistent, practical, or year round

Chapter 2: Gerwit v. Kannatzer : Issue: Under Missouri law, may a person whose possession of a property is hostile, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years gain title to that property by adverse possession?

-Yes as long as all the elements are met of (AP)

Ernst v. Conditt: Issue: Is a third party directly responsible to a lessor for the obligations under the lease when the lessee conveys to the third party all of his interest under the lease?

-Yes because this is assignment. Determine which one applies by looking at the INTENTION of the parties.

In Re Clark: Issue: Can tenants receive damages from landlords for egregious living conditions?

-Yes if they involve health and safety issue (water, lead paint, heat)

Matel v. MCA Records Issue: Where the commercial purpose of a dilutive use of a trademark is inextricably entwined with expressive speech elements protected by the First Amendment, is such use permitted under the Federal Trademark Dilution Act?

-Yes unless it meets one of the exceptions... Speach is not "purely commercial" so this was not a trademark Infringement.

Fink v. Miller: (Abandonment under CC&R Restrictions) Issue: Is a covenant abandoned when there are readily observable violations of sufficient number, nature, and severity to lead an average person to conclude that the property owners neither adhere to nor enforce the covenant?

-Yes, A covenant is abandoned when an average person inspecting the property would readily observe sufficient violations to logically infer that the owners neither adhere to nor enforce the covenant. -Courts should look at the number, nature, and severity of the violations.

Preseault vs. US (Abandonment of Easement) Issue: Is an easement terminated if the easement is used in a way that is inconsistent with the easement's original use and that was not reasonably foreseeable at the time the easement was established?

-Yes, An easement is terminated if the easement is used in a way that is inconsistent with the easement's original use and that was not reasonably foreseeable at the time the easement was established. -Nonuser, Acts by owner of easement are inconsistent with use or easement OR acts manifest intent to relinquish easement -Actions>Words.

O'Dell v. Stegall (Prescriptive Easement) : Issue: Does a person claiming a prescriptive easement have the burden of proving his use of the land was adverse?

-Yes, must meet all of the four elements. -Must prove that they were using "gravel" same way that a reasonable person would WITHOUT PERMISSION. -Does not need to meet the exclusive use requriment. -Bureden to prove is one Adverse user.

Neithhamer v. Brenneman Property Service: Issue: Once a plaintiff makes a prima facie showing of discrimination under the Fair Housing Act, 46 U.S.C. § 3601, et seq., may the defendant provide a non-discriminatory reason for rejecting the plaintiff's housing application?

-Yes, the burden shifts to the D for prove that his actions were nondiscriminatory.

Chapter 14: Takings (Regulatory Taking) PA Coal Mining v. Mahon Issue: May a statute that promotes the overregulation of property be considered a taking?

-Yes, while the use of property may be regulated, overregulation will be considered a taking.

Kienzle v. Myers (Easment by Estoppel) Issue: Does an easement by estoppel exist where a property owner induces another to change position in reliance on a supposed easement, even if the property owner did not mislead the other party?

-Yes,An easement by estoppel exists where: -(1) a property owner grants another permission to use the property, -(2) the other party has reasonable grounds to believe the permission will not be revoked, and -(3) the other party, relying on this permission, incurs costs or otherwise substantially changes position by acting in a way that is not easily undone

Vasquez v. Vasquez Issue: If a grantor actually delivers a deed to a third person and, without reserving a right to recall it, instructs the third party to deliver it to the grantee upon the grantor's death, is delivery complete?

-Yes. A deed must be legally delivered for a transfer to be valid. If a grantor actually delivers a deed to a third person and, without reserving a right to recall it, instructs the third party to deliver it to the grantee upon the grantor's death, delivery is complete.

Elk Creek Managment v. Gilbert: Does a landlord unlawfully retaliate against a tenant if the landlord terminates a lease because of the tenant's good-faith complaint?

-Yes. A landlord unlawfully retaliates against a tenant if the landlord terminates a lease because of the tenant's good-faith complaint. (Retalitoy Eviction Doctrine)

Rosengrant v. Rosengrant Issue: Is a property transfer only valid if the transferor intends for the transfer to take effect immediately upon delivery of the deed?

-Yes. A property transfer is only valid if the transferor intends for the transfer to take effect immediately upon delivery of the deed. -A property transfer is invalid if the transferor delivers the deed intending for the transfer to later take effect upon the transferor's death. (kill someone for the property)

Zaman v. Felton: Issue: Does an alleged sale that is in fact intended to pledge real property as security for a debt constitute an equitable mortgage rather than a sale?

-Yes. A purported sale of real property amounts to an equitable mortgage rather than a sale if the transaction is intended to pledge the property for a debt. MUST PASS the 8 Factro Test for Equitable Mortgage.

Ginnini v. First Nat'l Bank of Des Plaines: Issue: Is a buyer of real property entitled to a specific performance of a valid contract for the sale of real property as a matter of right?

-Yes. Absent oppression or fraud, a buyer of real property is entitled to a specific performance of a valid contract for the sale of real property as a matter of right. -Real property is recognized as unique. Legal remedies are thus inadequate, requiring an equitable remedy.

Chapter 8: Selling Real Property: Hickey v. Green: Issue: May an oral contract for the sale of land be specifically enforced if the party seeking enforcement detrimentally relied on the agreement?

-Yes. An oral land-transfer contract may be enforceable despite violating the Statute of Frauds if the party seeking enforcement detrimentally relied on the agreement. 1) Change in Position 2) Injustice without relief.

Chapter 11: Land Use Regulations: Nuisance Law: Boomer v. Atlantic Cement Issue: Are permanent damages appropriate in a situation where the harm caused by a nuisance is significantly less than the benefit to the party causing the nuisance?

-Yes. Boomer is entitled to an injunction that will be lifted once permanent damages are paid by Atlantic. A permanent injunction will not be awarded as defendant's operations provide significantly more economic benefit to defendant than the damage caused to plaintiffs

Lamari Corp v. Amron: Issue: Does the absence of even one element of a patent's claim from the accused product preclude a finding of literal infringement?

-Yes. For literal infringement to occur, every element of a patent claim must be present in the allegedly infringing product. -If through Doctrine of Equivalents must prove a substantial amount of every element in the original patent.

Shelley v. Kraemer (Discriminatory Covenant) Issue: Does the enforcement of a racially restrictive covenant by a state court amount to state action in violation of the Equal Protection Clause?

-Yes. State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment. -That Clause guarantees equal treatment of all people under the law, including in their exercise of various property rights. There is no question that restrictive covenants that discriminate solely on the basis of race would be invalid on equal protection grounds if created by a state or local law.

Estaves v. Estaves: Issue: Where a cotenant has sole possession of the property and demands contribution for operating and maintenance expenses from the non-possessing cotenant, must the tenant in possession allow a corresponding credit for the value of his sole occupancy?

-Yes. Where property is held in a tenancy, there are two general rules applicable to the distribution of proceeds upon sale of the property. 1) Each Co-tenant must pay their pro rata share for the property for maintenance of the property 2) Non-possory co-tenant has no "right to receive rent" from the possessory tenant.

Qualitex Co. v. Jacobson Products Co. Issue: Can a color be trademarked?

-Ys as long as it has a secondary meaning and meets trademark requirements(PP reasons)

Moore v. Regents of the University of California Issue: (1) Will a patient's consent to a medical procedure be effective if the physician failed to disclose her personal research and economic interests beforehand? (2) Does a patient continue to have ownership rights in his cells after they leave his body?

1) No, must give consent before. 2) No. Once Cells leave body they are no longer have ownership rights.

Per Se Tests (Regulatory Takings)

1) Permanent Physical Occupation of Land 2) Loss of All Economically beneficial or productive Use

Howard v. Kunto: (1) Does using property as a summer home constitute uninterrupted use for purposes of adverse possession? (2) May a previous owner's time occupying a property count toward the statutory period so as to constitute adverse possession?

1) Yes, continuous use is how a reasonable person would use the land. 2) Yes, as long as all previous owners believed they had a type of "title" in the land. (Courts taking into consideration successive good faith under the takings clause)

Chapter 5: Marenholz v. Country Board of School Trustees: Issue: Does deed language granting land for an ambiguous purpose and otherwise reverting the land to the grantor create a fee simple determinable followed by a possibility of reverter?

1)Deed language granting land for an ambiguous purpose and otherwise reverting the land to the grantor creates a fee simple determinable followed by a possibility of reverter. ON OTHER HAND... 2) a person holding fee simple subject to a condition subsequent followed by a right of reentry must make some effort to reclaim the property if the condition under which it was conveyed is broken. (Only here makes it Fee Simple Subject to Condition Subsequent)

Harper v. Nation Enterprises: Issue: 1)Is the permitted use of a copyrighted work expanded under the fair use doctrine if the subject matter is of high public concern? (2)Is the use of content from an unpublished manuscript intended for commercial publication a fair use?

1)No this alone is not enough. The court must look at the four factors. (Purpose and Character, Nature, Amount and Substantially, Potential Market) Not broader if it involves public figures. 2) No, The use of content from an unpublished manuscript intended for commercial publication is likely NOT a fair use.

Lucus v. South Carolina Coastal (Per See Economicly Beneficial or productive use) Issue: May a state enact a regulation that results in the complete destruction of economic value of private property without paying just compensation to the owner?

NO, A common maxim which emerges from takings jurisprudence is that, "while property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking - Must be 100%

Pierson v. Post: Issue: Does pursuit of a wild animal vest property rights in the pursuer?

NO. Pursuit of a wild animal is not enough to define first possession.

Township of Mount Laurel (Low income Housing and Zoning): Issue: May a town effectively prevent low and moderate income families from residing in the town through its system of zoning regulations?

No, If a town's system of zoning regulations effectively prevents low and moderate income families from residing in the town, the regulations are unlawful. Zoning Laws Must: 1) Affirmatively Promote welfare 2) Needs of Citizens 3) Encourage Inclusive Land use and Development

Woodrick v. Wood: May the holder of a remainder interest in a parcel of property prevent the life tenant of that property from destroying a structure on the property if destroying the structure would not decrease the property's value?

No, a holder of a remainder interest in a parcel of property may not prevent the life tenant of that property from destroying a structure on the property if destroying the structure would not decrease the property's VALUE.

Luthi v. Evans: Does a Mother Hubbard clause in a real-property conveyance put a subsequent purchaser of an interest in the property on constructive notice of the prior conveyance?

No. A Mother Hubbard clause that does not provide a sufficiently detailed description of the property conveyed fails to provide constructive notice to a subsequent purchaser.

Berg. v. Wiley: Is self-help an appropriate remedy for perceived violations of a lease?

No. Under the common law rule, a lessor may use self-help to retake possession of leased premises, but only if the means used to retake are peaceable. (this is not likely)

Diamond v. Chakrabarty: Issue: Is a live, human-made microorganism a patentable subject matter?

Yes because 1) Composition of matter, 2) bacteria found nowhere else, 3) Public policy information is relevant when dealing with patentable law.

Fidelity v. Kaminsky: Issue: Can a landlord's failure to act in the face of repeated requests to protect a tenant's quiet enjoyment of the premises constitute a constructive eviction?

Yes, A landlord's failure to act in the face of repeated requests to protect a tenant's quiet enjoyment of the premises can constitute a constructive eviction. -If a third party can not enter an abortion clinic that is an issue.

Stambovsky v. Ackley Issue: If a seller creates a condition that materially impairs the value of a contract and is within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care, does nondisclosure of the condition constitute a basis for rescission of the contract?

Yes. -Under the doctrine of caveat emptor, a buyer must act prudently to assess the fitness and value of the property that is the object of a transaction, or the buyer who fails to exercise due care will be barred from seeking the equitable remedy of rescission. -However, if the seller creates a condition that materially impairs the value of a contract and that is within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care, then nondisclosure of the condition is a basis for rescinding the contract.

Raub v. General Income Sponsers of Iowa: Issue: Is a bona fide purchaser entitled to have its purchase upheld if it is not on reasonable notice to make inquiry into whether the grantor obtained the property fraudulently?

Yes. A bona fide purchaser is entitled to have its right to the property upheld even if the grantor obtained the property fraudulently, unless the purchaser knew about the fraud or was on notice to make reasonable inquiry which would have uncovered the fraud.

Zoning Laws: Village of Euclid v. Ambler Reality Co. Issue: May cities and municipalities constitutionally pass zoning regulations?

Yes. Euclid's zoning ordinance is constitutional. Zoning restrictions are unconstitutional if "clearly arbitrary and unreasonable" and without "substantial relation to the public health, safety, morals, or general welfare."

Prah v. Maretti: Can private nuisance law be applied to a dispute over a landowner's access to sunlight?

Yes. In cases involving access to sunlight, private nuisance law is a claim upon which relief can be granted.

Trip Associates, Inc. v. Mayor and City Council of Baltimore :(Nonconforming use) Issue:Is increasing the frequency of a valid, nonconforming use of property a permissible intensification of the use rather than an unlawful expansion of the use?

Yes. Increasing the frequency of a valid, nonconforming use of property is a permissible intensification of the use rather than an unlawful expansion of the use.

White v. Samsung: (Right of Publicity) (Right of Privacy) Does the common-law right of publicity protect a celebrity's identity from unauthorized commercial exploitation?

Yes. The common-law right of publicity can protect a celebrity's identity from unauthorized commercial exploitation. Celebrities have a commercial interest in their identities, which the law must protect.