Property

Brown v. Gobble

(p. 287) What happened? Gobbles are the defendants, Browns are the plaintiffs. Browns commenced an action for ejectment against the gobbles The Gobble family purchased a piece of property in 1985 and were informed by their real estate agent that their property ran up to and included the fence. They used this property consistent with ownership rights, including the fence. When the Browns purchased their property in 1989, they had a survey done which showed that the fenced-in two feet wide tract of land that the Gobbles believed was theirs actually belonged to the Browns. At the time, the Browns did nothing to show ownership of that land. Five years later, the Browns decided to build a road on that land, but the Gobbles asserted ownership of the land. The trial court held the Gobbles failed to show ownership by adverse possession Boundary dispute case Here, the statutory period (SOL) was 10 years Elements of adverse possession: Actual possession: Gobbles had fenced in and maintained the fenced in two foot strip tract of land Open and notorious: witnesses called that said the reputation in the community was that the Blevins (to the Gobbles) owned the two foot tract of land Exclusive: only the Blevins/Fletchers had ever had control of the two foot tract, and their claim to the tract was never objected to. They acted as true owners would and never let anyone else settled there Continuous: tract was maintained, cultivated, and claimed by the AP party up until each transaction, at which time the new owners continued to do the same. No big breaks in their ownership Adverse/hostile: kind of assumed here, but witnesses testified as to the fact that the land was fenced off so that it could not be shared between the two properties at any point dating as far back as 1937 We don't see an intent requirement here They do address claim of right or claim of title here, which might be where we get intent: basically asks does the AP have the intention to appropriate and use the land as the average owner would. Here, the Gobbles and their predecessors never had actual title to the property, yet claimed actual title by virtue of their above actions Do we know what the court is requiring here as the state of mind of the adverse possessor, which gets back to our question of does it matter under the doctrine at all whether they were there by mistake or knowingly/willfully? The court here doesn't care. Some do sometimes, but this court basically uses an objective test: you went onto the property and you acted like a true owner would. We don't care about your subjective state of mind actually at all. Could be a mistake, could not be, it doesn't matter For the statutory period: the tacking had the Gobbles in adverse possession dating all the way back to 1937, which far exceeded the statutory period In fact, it may be that the previous owners had already adversely possessed the property even before the new owners obtained it What is great about this case is that it just walks you through each of the doctrinal elements, and that is why it is in the casebook. It helps you walk through these elements, the footnotes are helpful, etc. A few things to point out from RS: The AP here is the Gobbles. They are the ones that have been caring for this portion, but their deed doesn't show that they own the fenced in portion. A survey would show they didn't own this, even though everyone has treated it as theirs. Are the gobbles there by mistake or purposefully? The Gobbles are there by mistake. The fences was already there, they believed it to be theirs and the owners didn't give them any notion that it may not be theirs If the Blevins had given them notice, it may not notice because the Blevins were already adverse possessors by that point. But if they weren't, then they were there purposefully. Does it change this at all if they were there purposefully? Not to this court it doesn't seem like it (see above)

Evans v. Abney

Court found that a racially restrictive park was allowed to stand and that covenant was enforceable Criticized for being so soon a departure from Shelley

State v. Shack

Made a First Amendment challenge, and the court cited Marsh, but the court never reached this question

O'Brien v. O'Brien

Plaintiff and Defendant were married. They moved to Mexico so Plaintiff could go to medical school full-time, while Defendant forfeited her opportunity to obtain permanent certification on her teaching certificate in New York. While Plaintiff went to medical school, Defendant contributed all of her earnings to their joint expenses as well as to the expenses of his degree, exceeding those contributions of the plaintiff. The couple then moved back to America so Plaintiff could finish school. Two months after Plaintiff received his medical license, he filed this action for divorce against defendant This court affirms the ruling of the lower court that the marital license is property who's value should be divided on the basis of statutory interpretation See the statute language at the top of 709 The statute in this case is a bit ambiguous, and they definitely could have been more explicit on this matter, but nonetheless the court reaches this conclusion "It is an overstatement to assert that a professional license could not be considered property even outside the context of 236(B). A professional license is a valuable 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, which may not be revoked without due process of law. That a professional licensee has no market value is irrelevant." p. 710 Note that several other remedies than the one the trial court selected may be possible here: Wife could get nothing Wife could get equitable distribution of the current assets (which here really would still be nothing) Wife could get a maintenance award: periodic payments to her that would terminate once she remarried Wife could get reimbursement/restitution for what she put into her husband's degree and their home care Wife could get lost opportunity and earnings costs from their marriage period Or wife could get any foregoing combination of these Note that other states, including NJ, have come to the opposite conclusion on the issue of licenses being marital property Mahoney v. Mahoney The court rejected the idea that graduate degrees constituted property, giving several reasons: They do not resemble traditional property interests because they are not transferrable They are the cumulative product of many years of hard work and cannot be acquired by the mere expenditure of money Their value cannot be easily determined because it is very hard to speculate how far a person holding the license will be able and willing to take it in their career Awards of property are final and unmodifiable, unlike alimony, thus leaving courts helpless to change the award if they make a mistake in their speculations How do we decide which way is best, how do we reach our view? The concurrence on this point seems decently compelling: granting a forward-looking value of the license is pretty speculative, and it locks people in to careers they might not want to stay in because they have to keep making payments BUT, if we want marriages to be a true partnership economically speaking, then everything should be split up evenly And, she gave up not inly jobs, but also life prospects to be with him. Court wants to move away from the "uncertain and inequitable economic ties" of dependence Here, we want to understand the arguments from both sides and the alternatives that we might adopt in their place (p. 706) What happened? Plaintiff and Defendant were married, at which time they were both employed as teachers at the same private school. They moved to Mexico so Plaintiff could go to medical school full-time, while Defendant forfeited her opportunity to obtain permanent certification on her teaching certificate in New York. While Plaintiff went to medical school, Defendant taught school and contributed all of her earnings to their joint expenses as well as to the expenses of his degree, exceeding those contributions of the plaintiff. The couple then moved back to America so Plaintiff could finish school, with Defendant continuing to help fund that degree. Two months after Plaintiff received his medical license, he filed this action for divorce against defendant The trial court, reflecting its view of the defendant's contributions to the marriage and assessing the newly obtained medical license as marital property, granted her $188,000, representing 40% of the value of the license, to be paid out in 11 installments Note that it seems odd in a partnership to take off the 10% and not make them equals Here, the trial court thinks it has devised an equitable solution without burdening the plaintiff/making him pay for too long This court affirms the ruling of the lower court that the marital license is property who's value should be divided, but they do so on the basis of statutory interpretation See the statute language at the top of 709 "The words mean exactly what they say: than an interest in a profession or professional career potential is martial property which may be represented by direct or indirect contributions of the non-title holding spouse, including financial contributions and non-financial contributions made by caring for home and family." p. 709 The statute in this case is a bit ambiguous, and they definitely could have been more explicit on this matter, but nonetheless the court reaches this conclusion "It is an overstatement to assert that a professional license could not be considered property even outside the context of 236(B). A professional license is a valuable 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, which may not be revoked without due process of law. That a professional licensee has no market value is irrelevant." p. 710 Note that several other remedies than the one the trial court selected may be possible here: Wife could get nothing Wife could get equitable distribution of the current assets (which here really would still be nothing) Wife could get a maintenance award: periodic payments to her that would terminate once she remarried Wife could get reimbursement/restitution for what she put into her husband's degree and their home care Wife could get lost opportunity and earnings costs from their marriage period Or wife could get any foregoing combination of these How do we decide which way is best, how do we reach our view? The concurrence on this point seems decently compelling: granting a forward-looking value of the license is pretty speculative, and it locks people in to careers they might not want to stay in because they have to keep making payments BUT, if we want marriages to be a true partnership economically speaking, then everything should be split up evenly And, she gave up not inly jobs, but also life prospects to be with him. Court wants to move away from the "uncertain and inequitable economic ties" of dependence Do we want courts to try to figure out who the bad guy is? Not really. We want them to just divide up the assets and send them on their way, which is why no fault regimes have become the majority rule Note that other states, including NJ, have come to the opposite conclusion on the issue of licenses being marital property Mahoney v. Mahoney The court rejected the idea that graduate degrees constituted property, giving several reasons: They do not resemble traditional property interests because they are not transferrable They are the cumulative product of many years of hard work and cannot be acquired by the mere expenditure of money Their value cannot be easily determined because it is very hard to speculate how far a person holding the license will be able and willing to take it in their career Awards of property are final and unmodifiable, unlike alimony, thus leaving courts helpless to change the award if they make a mistake in their speculations Here, we want to understand the arguments from both sides and the alternatives that we might adopt in their place

Pray v. Maretti

The plaintiff's residence used solar energy for heat and hot water. The defendant bought the lot adjacent to the residence and planned to build a home, but the home would adversely affect the plaintiff's solar energy collecting. The plaintiff sough injunctive relief. This is the MINORITY RULE regarding light and air in the US Majority here rejects Fontainebleau (at least in part) saying that there is no per se rule. You might be able to win a case on this blockage here in Wisconsin This creates a mere standard for light and air nuisance The court gives a lot of policy considerations for going this way: Sun is good when used as an energy source Access to sunlight as an energy source is important to the landowner who has invested in solar collectors and to a society which has an interest in developing alternative sources of energy. We now regulate the use of land an awful lot anyways, and regulating land for the general welfare is what we do. So, it really isn't far off to allow P to at least bring the nuisance claim The law of private nuisance can be used to protect both a landowner's right of access to sunlight and another landowner's right to develop land because it recognizes changing social values and conditions. Although obstruction of access to light might be found to constitute a nuisance in certain circumstances, this does not mean that it will be or must be found to constitute a nuisance under all circumstances. The dissent thinks that there is no claim for nuisance here on its face A nuisance is an invasion of another's use or enjoyment of land. Blocking sunlight is not an invasion, since the building satisfies all zoning ordinances. The plaintiff's solar energy system is an unusually sensitive use, and those uses are not protected by nuisance law. Plus, there are administrative costs with allowing a plaintiff to even bring this claim And this is a determination that should be made by legislatures There appellate court in their decision remands this back down to the trial court for proceedings. Therefore, we can't say whether Prah or Maretti wins here because the appellate court issued no final judgement on the nuisance claim, just that a plausible claim existed and the court should see that it moves forward. Prah, the environmentalist here, is kind of quirky. Maybe he represents a hypersensitive user, maybe he is technologically disruptive. But, he was also the first at the property in time, and here, Maretti is definitely the cheapest cost avoider Property favors maintaining the status quo generally (against the solar panels), but it also favors the first person in time (for the solar panels) In favor of Maretti here, Prah could have bought the lot that Maretti bought and protected himself if he was so concerned Again, all 4 options remain viable as remedies here (p. 373) What happened? The plaintiff's residence used solar energy for heat and hot water. The defendant bought the lot adjacent to the residence and planned to build a home, but the home would adversely affect the plaintiff's solar energy collecting. The plaintiff sough injunctive relief. This is essentially the same as with the Fontainebleau case but just with solar panels Majority here rejects Fontainebleau (at least in part) saying that there is no per se rule. You might be able to win a case on this blockage here in Wisconsin The plaintiff is seeking to protect access to sunlight as a source of energy, not for aesthetic reasons. Access to sunlight as an energy source is important to the landowner who has invested in solar collectors and to a society which has an interest in developing alternative sources of energy. The law of private nuisance can be used to protect both a landowner's right of access to sunlight and another landowner's right to develop land because it recognizes changing social values and conditions. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. Although obstruction of access to light might be found to constitute a nuisance in certain circumstances, this does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable. The dissent thinks that there is no claim for nuisance here on its face A nuisance is an invasion of another's use or enjoyment of land. Blocking sunlight is not an invasion, since the building satisfies all zoning ordinances. The plaintiff's solar energy system is an unusually sensitive use, and those uses are not protected by nuisance law. Prah, the environmentalist here, is kind of quirky. Maybe he represents a hypersensitive user, maybe he is technologically disruptive. But, he was also the first at the property in time, and here, Maretti is definitely the cheapest cost avoider Property favors maintaining the status quo generally (against the solar panels), but it also favors the first person in time (for the solar panels) In favor of Maretti here, Prah could have bought the lot that Maretti bought and protected himself if he was so concerned There appellate court in their decision remands this back down to the trial court for proceedings. Therefore, we can't say whether Prah or Maretti wins here because the appellate court issued no final judgement on the nuisance claim, just that a plausible claim existed and the court should see that it moves forward. Again, all 4 options remain viable as remedies here

Shelley v. Kraemer

This case is about the constitutionality of judicial enforcement of racially restrictive covenants Note that this case is pre-Brown v. Board, and there is some rich judicial history of this question: In 1917 the court had struck down de jury racial segregation laws in a different Kramer case In 1926 there is a challenge to racially restrictive covenants in Buckley, and the court shies away from saying that they won't enforce these agreements The NAACP at this time is really worried about these covenants because it is really hard for blacks to find properties that don't have such a covenant attached to them The court rules that the equal protection clause bars the states from enforcing racially restrictive covenants Why do they have to make this ruling to get the job done? No state or federal statutory provision affirmatively prohibiting these covenants Civil rights cases tell us the 14th amendment only applies to state action, so they need to find some state action to hook this to then Made clear by this court on p. 629: "the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the fourteenth amendment is only such action as may be fairly said to be that of the stats. That amendment erects no shield against merely private conduct, however discriminatory or wrongful" In other words, your neighbor can violate your statutory rights, but they cannot violate your constitutional rights A covenants question: does the covenant here meet all of the requirements for a real covenant? Simple answer is no. Writing? Yes Intent? NO!!! Not everyone signed the covenant and agreed to it (see the brackets on p. 627). At the very least, this makes intent very sketchy here Horizontal privity? NO!!! There is no common interest in the land between the neighbors, only privity of contract Vertical privity? Yes, between the selling neighbor and the Shelleys. But unsure who could enforce the benefit, so this might be a problem for the benefits side of the equation Notice? Actual: no. Constructive: yes, it was recorded. Inquiry: likely not because there were other blacks living in the neighborhood Touch and concern? Our real world answer is no because it does not affect the porperty itself or what is done with it. But the courts regularly held that yes, there was touch and concern because race was thought to affect property values (which tells us touch and concern is total bogus) Oddly, at the end of the day SCOMO says the covenant was fine and lets it stand, and the supreme court doesn't overturn that here and instead focused on the constitutional question That brings us to the state action question: was there state action to warrant striking this down as unconstitutional? The court threads the needle here and draws a distinction between the covenant and the enforcement of that covenant The court says the covenant itself may be fine if it is voluntarily assented to by all of the involved parties BUT, what the court says you can't have is judicial action enforcing the covenant Shelley here falls at the rightmost hashmark. Marsh would fall around there as well, while Neuman falls closer to the other end Let's stop and think about this proposition for a moment though: If the Shelleys are in the house and won't leave, what happens? The police come, and that is state action If the Shelleys are not in the house but want to buy the house with the covenant and the owner won't sell so they seek a declaratory judgement, that might be state action. And then any violation of that declaratory judgement will involve police again, which is state action Any way you shake it, we end up back at the police and state action. So where is the limit? The court does draw some distinctions on what is state action and what isn't: They distinguish between this case, where we have both a willing seller and a willing buyer and the cases where either everyone agrees on enforcing the covenant or we have a willing buyer but a refusing seller One way we might draw this distinction is on passive v. Active lines But RS thinks this distinguishing reasoning really collapses because eventually the police have to come (and the same in Neuman) Distinguish between active intervention and passive intervention on the basis of a but-for test: active intervention is found when we ask the counterfactual, would the covenant have been upheld but for the state action?. Under passive intervention, the court merely abstains and lets the parties self enforce, and this is fie (p. 631) Neither Shelley nor Marsh has really been extended outside of their original decisions (p. 88) What happened? On February 16, 1911, thirty out of thirty-nine property owners in a neighborhood in St. Louis, Missouri entered into a restrictive covenant which stated that for a term of fifty years no property in the neighborhood could be sold or rented to any black or Asian persons. On August 11, 1945, Petitioners Shelley, who were black, bought a property in the neighborhood from Fitzgerald, and Petitioners were not aware of the restrictive covenant at the time of the purchase. Respondents, who were the other owners in the neighborhood, sued in the Circuit Court of St. Louis on the basis of the restrictive covenant with the intention of having the Court divest the Petitioners of their newly acquired property and revert title to Fitzgerald, or to some other person at the Court's discretion. This case is about the constitutionality of judicial enforcement of racially restrictive covenants Note that this case is pre-Brown v. Board, and there is some rich judicial history of this question: In 1917 the court had struck down de jury racial segregation laws in a different Kramer case In 1926 there is a challenge to racially restrictive covenants in Buckley, and the court shies away from saying that they won't enforce these agreements The NAACP at this time is really worried about these covenants because it is really hard for blacks to find properties that don't have such a covenant attached to them What has changed here? Blacks went and fought in WWII against white supremacists in Europe, only to return home and be denied property because of a white supremacist regime, which is a bad look Also, the returning GIs now have greater political power The court rules that the equal protection clause bars the states from enforcing racially restrictive covenants Why do they have to make this ruling to get the job done? No state or federal statutory provision affirmatively prohibiting these covenants Civil rights cases tell us the 14th amendment only applies to state action, so they need to find some state action to hook this to then And this is made clear by this court on p. 629: "the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the fourteenth amendment is only such action as may be fairly said to be that of the stats. That amendment erects no shield against merely private conduct, however discriminatory or wrongful" In other words, your neighbor can violate your statutory rights, but they cannot violate your constitutional rights Neuman employed the state action requirement also as of critical importance Remember that this might also be covered by the analysis in Marsh v. Alabama Neither Shelley nor Marsh has really been extended outside of their original decisions A covenants question: does the covenant here meet all of the requirements for a real covenant? Simple answer is no. Writing? Yes Intent? NO!!! Not everyone signed the covenant and agreed to it (see the brackets on p. 627). At the very least, this makes intent very sketchy here Is there horizontal privity? NO!!! There is no common interest in the land between the neighbors, only privity of contract Is there vertical privity? Yes, between the selling neighbor and the Shelleys. But we are unsure who could enforce the benefit here, so this might be a problem Is there notice? Actual: no. Constructive: yes, it was recorded. Inquiry: likely not because there were other blacks living in the neighborhood at the time Touch and concern? This one is tougher. Our real world answer is no because it does not affect the property itself or what is done with it. But the courts regularly held that yes, there was touch and concern because race was thought to affect property values (which tells us touch and concern is total bogus) Oddly, at the end of the day SCOMO says the covenant was fine and lets it stand, and the supreme court doesn't overturn that here That brings us to the state action question: was there state action to warrant striking this down as unconstitutional? The court threads the needle here and draws a distinction between the covenant and the enforcement of that covenant The court says the covenant itself may be fine if it is voluntarily assented to BUT, what the court says you can't have is judicial action enforcing the covenant Let's stop and think about this proposition for a moment though: If the Shelleys are in the house and won't leave, what happens? The police come, and that is state action If the Shelleys are not in the house but want to buy the house with the covenant and the owner won't sell so they seek a declaratory judgement, that might be state action. And then any violation of that declaratory judgement will involve police again, which is state action Any way you shake it, we end up back at the police and state action. So where is the limit? The court does draw some distinctions on what is state action and what isn't: They distinguish between this case, where we have both a willing seller and a willing buyer and the cases where either everyone agrees on enforcing the covenant or we have a willing buyer but a refusing seller One way we might draw this distinction is on passive v. Active lines But RS thinks this distinguishing reasoning really collapses because eventually the police have to come (and the same in Neuman) Shelley here falls at the rightmost hashmark. Marsh would fall around there as well, while Neuman falls closer to the other end The court here thinks that the distinction between de jury regimes on race and de facto covenants on race is really not much of a distinction at all, which is why they are clear that there IS state action here.

Vasquez v. Glassboro Service Association, Inc.

We are in NJ in 1980. Glasboro Service Association, Inc. (Defendant) hires out migrant farm workers to farmers. Pursuant to a contract with the Puerto Rican Department of Labor, Defendant also supplied living quarters for workers. Natividad Vasquez (Plaintiff) worked for Defendant under contract but was discharged from his position. Although there was vacant space in the living quarters, Plaintiff was not permitted to remain overnight. The Farmworkers Rights Project filed a complaint seeking an order permitting Plaintiff to reenter his living quarters and enjoining Defendant from depriving him of the use of the quarters except through judicial process. Who gets the status of a tenant/falls into this common law created relationship and the stuff that comes along with that under the common law and statutes?Specifically, are migrant farmworkers who live on a farm in a community barracks and signed a contract to come and work and labor in the state, are they tenants? If they are, a bunch of property law applies to them If not, something else applies to them At common law, would these folks be considered tenants? No Under statutory law (where the court goes next) are they tenants? The stature prohibits the eviction unless the landlord showed good cause, as defined in the statute. Additionally, it allows eviction if the "landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated." Looks like it allows for some employment housing relationships to be tenancy, departing from the common law rule some. They give examples of superintendent, janitor, or ejusdem generis (things of the same kind) Here, the court says that a migrant farm worker is not the same or of the same kind as a superintendent or janitor. If we hadn't read the case it might be kind of a close question, and we need to know some of the relevant characteristics. The court points us to some of these on 819-20, which is living with families and privacy and things. The court here says they are not living in private areas, their families aren't there, the situation is temporary and tenuous, and thus a migrant farm worker is not like those other things so they aren't tenants The second part of the opinion then says ok you're not a tenant, but even though that's not the case, you are entitled to an investigation on the contract that you do have and we can still regulate this eviction They say that there needs to be better process for eviction of the migrant workers even despite the fact that they are not tenants Now we are in contract land and out of landlord tenant. We are now putting mandatory terms in the employment contract, and what they are implying is a mandatory term that says if you are fired, you have to get a little bit of time and notice before we kick you out of your living situation They discuss unequal bargaining power at one point They discuss unconscionability, specifically substantive unconscionability These are contracts of adhesion There is no evidence that this migrant worker, who only speaks Spanish, was ever given a Spanish version of his contract There is also a pretty clear public policy requirement for giving such notice before throwing migrant workers out; they cite State v. Shack as supporting greater rights for migrant workers in housing in particular and this particular vulnerable group. And they discuss a remedy here: Now, the court has to figure out if you aren't a tenant what you get, because the remedies like summary dispossess hearings are not available but we still think you have some rights What mechanism is it here? They suggest summary action under NJ Rule 4:67 as a more appropriate proceeding. We have no idea what this is, it is some kind of summary action but that is the appropriate proceeding In essence, they say they are not tenants, but the SCONJ gives them a summary dispossess proceeding under this other rule Why do this? Why not just treat them as tenants? They do want to give them some kind of process before they are kicked out, but they don't want to give them other rights that landlords have in needing maintain the housing under certain conditions So there will be a whole set of things both statutory and common law that a transfer of a property interest like a leasehold would entail because that is a property transfer. Those protections would not fit into this kind of relationship, so the NJ Supreme Court wants to help these people out on public policy grounds and give them process but not those other things, and they do it through contracting instead of calling them tenants They rule that the employment contract must include some term that says you are entitled to this summary-like process that protects you from being immediately removed in situations like this. They also say you might be entitled to time in addition and some other things "An appropriate remedy might include time in addition to that implied in the contract, assistance in obtaining alternative housing, return passages to Puerto Rico, or some other form of relief." p. 823

Lloyd Corp.

is SCOTUS and thus is good law for the entire United States

Charrier v. Bell

(p. 158) What happened? Charrier is an amateur archaeologist, and he found an area which was once the site of an American Indian village and represented an abandoned grave site for them. He spent three years excavating the site and excavated a large amount of artifacts, even though he knew he did not have permission from the landowner. He tried to obtain permission once but was told by the person he spoke to that he was not the legal owner of the land. After excavating, Charrier then went around and tried to sell his collection. Because he was unable to prove ownership over the artifacts, he could not sell the collection to any of the interested buyers. He sought a judgment declaring himself the owner of the artifacts, or in the alternative, compensation under the theory of unjust enrichment for his time and expenses. The trial court denied both claims. Charrier argues three key justifications: Tunica aren't rightful owners because they are not descendants Objects were abandoned when buried and thus available for anyone to claim Unjust enrichment: he did the work and has a reasonable expectation of compensation What does the court decide? Essentially what the court says is ownership of the artifacts here depends in large part on what they are and the circumstances of how they were left Res nullius: items that were always unowned (like a fox) can be taken by the law of capture Res derelictae: items that were abandoned with the intent for ownership to pass (like a baseball) can also be taken by the law of capture Here, though, the artifacts are neither one of these. They were once owned, but they were not left with the intention for ownership to pass Court notes that here, the intent was for the artifacts to be left buried So they adopt a standard: generally, things left in the ground are abandoned unless there is a way to glean an intent for the things to be left there This is a BIG articulation of settled expectations/social norms How do the other justifications comport with this? Social welfare: this is the wrong rule. We should dig it up because these artifacts are good to discover, display for appreciation, etc. Rights theory: natives are the owners here. Cultural property is highly personal to a group and sort of paradigmatic of non-monetary value Distributive justice: definitely motivates the court to push in the direction of the natives claim. We already took their land (see M'Intosh), so we really probably shouldn't take their stuff and continue to defile them in this way A note about the unjust enrichment argument: Elements are on p. 161: there must be an enrichment, and impoverishment, a connection between the two, an absence of justification for the two, and no other remedy available at law Unjust enrichment is meant to serve parties justice even when they can't assert a property interest that provides them with a remedy (an equitable concept that inquires into what is fair) We sometimes also think of this as a finder's fee: you get some credit for uncovering the thing in controversy Here, the court rejects the unjust enrichment claim because of the nefarious nature of what was going on. Charrier was kind of grave robbing and knew he was sneaking around, and we really don't want to reward his own knowing negligence

Nome 2000 v. Fagerstrom

(p. 303) What happened? Nome 2000 is some sort of mining company, and they want to take over the land of the Faegerstroms This case involves a dispute over land in Alaska that the court identified for purposes of the litigation as two parcels, the north end and the south end. Nome 2000 is the record title holder of the entire parcel. The Fagerstroms used the northern parcel of land seasonally—it was not suited for winter residency—for a period of several years. They used the northern parcel for various activities, including housing their camper trailer, planting trees, and building a picnic area, an outhouse, a fish rack, and a reindeer shelter. Nine years prior to the lawsuit, they built a cabin on the northern parcel. The Fagerstroms only used the southern parcel during the relevant time period for recreation on preexisting trails and picking up trash. The Fagerstroms allowed others to use the entire property for activities such as picking berries and fishing, but many people in the community testified that they thought the Fagerstroms owned the property. Nome 2000 admitted that the Fagerstroms adversely possessed the northern parcel for the nine years from the time they built the cabin until the filing of this complaint, but filed suit to eject the Fagerstroms from the property. The Fagerstroms filed a counterclaim, stating that they acquired title to the property through adverse possession, which has a statutory period of ten years in Alaska. Nome 2000 filed a motion for directed verdict. The lower court denied the directed verdict for both the northern and southern parcels. Nome 2000 appeals. So we have the big bad company trying to take the land of the Alaska natives The Fagerstroms win this case, but it is close Everybody agrees that when they put the cabin on the land in 1978, that they adversely possessed that parcel or at least met all of the requirements for adverse possession But the lawsuit is filed in 1987, and the statutory period in Alaska is 10 years. So they need to get to 1988 The only dispute here is about them falling short by about 6 months or whatever it is of for sure establishing all of the elements What is the claim that they have possessed it for the statutory period? What evidence do they put on to show that all of these elements have been met prior to '78? They tell a story: first, they put up posts around the borders of this land as a signal that they owned it. Then, they have been picking up litter and gathering berries and some other stuff. They have also been visiting the property during the warmer months and recreating there by fishing and such, placing a trailer there in 77: bringing the camping gear/mobile home/reindeer pen, they kicked people off (acting as a true owner would), planted trees that were non-native, established an outhouse, and on and on They were only here in the summers though, which might be a problem for continuous even though they did come every year The court on continuity says it doesn't has to be totally continuous, it just has to be used consistent with how others would use it, and since this is land in Alaska that is really only good in the summers anyways, the fact that they were coming and using the land every summer is enough They started going to this property in 1966, but in face Faegerstroms say that they think their family has been using it since 44 (see 304). So they have had a relationship well before, it just is not enough of a relationship to give rise to adverse possession until they do a little bit more Definitely adverse because they didn't receive permission, and the court here on intent? Do they care? The Fagerstroms knew how to get an allotment because they had done so: they bought the property next to where they were. And then they placed posts along that allotment, which kind of suggests that they knew they were squatting on land. But the court says it doesn't matter. They just want to see a squatter acting like an owner here. "Whether the Fagerstroms believed or intended has nothing to do with the question of whether their possession was hostile. Hostility is instead determined by an objective test, which simply asks whether the possessor 'acted toward the land as if he owned it,' without permission of one with legal authority to give possession." P. 308 There is sort of a fiction that the law has here that they have only had this land for 9.5 years, in part because the law favors established structure. And so they demarcate the tolling of the statute then, and that is what throws this into controversial territory But the court after going through a great deal of detail says nope this is ok, and even just the seasonal use is ok because this is rural land and this is how rural land in Alaska is often used What does Nome want with this land? Why do they even make the claim for it? They want to mine some kind of natural minerals or oil or gold or something that is underneath this land Why did nome 2000 not either give them permission or initiate their action for ejectment within the statutory period? Maybe they are a giant corp that just bought up a bunch of land and don't have the care to go and inspect all of it for squatters and never set a foot down on it at all Question with AP is is someone getting something for nothing? Is this the right decision? What is the justification for allowing people like the Faegerstroms to take the land from the rightful owners? Book gives a bunch, but we also have our own Peter: Labor favors the Fagerstroms, possession favors the Fs, settled expectations favors the F because they are on there and living there, social welfare favors the Fs, rights favors the mining company because they bought and owned the property and had a right to it but maybe a natural right to occupy, distributive justice favors the F Jordan: settled expectations favors mining because we don't expect if someone has bought the land that other people are just going to start showing up and claiming it as theirs; opposite argument would be that the Fs have been going there for a long Time and acting like owners towards it and the company has not, so we want to give the land to people that treat it like owners treat it These elements of adverse possession track the justifications, so if you meet the elements then we think labor, possession, and settled expectations are going to favor you Social welfare is a bit trickier though: we want as a matter of society a number of things AP as a whole should be eliminated because we want some stability and don't want to undermine the authority of our documents But where does this leave schragger and his driveway case? There social welfare weighs in favor of the Schragger possession So two moves here: One is a social welfare calculus between owners. We can weigh investment in the land between the two owners, and that can give us our favoring Second is a calculus on which we figure out what is good for the property system as a whole: we want a clear system with no disputes and the true owner with the piece of paper always wins Adverse possession says that social welfare is sometimes injured by formalities because rules are over and under inclusive, fail to do justice, and might give a windfall to folks who did not think they own that property, found out later that they own that property because they do, and then try to capitalize on that opportunity/take advantage of people even though they didn't ever think they owned it Social welfare might be even more different in this case because of the natural resources under the ground Here, the Fagerstroms would get the oil if they are granted the property, and maybe that is a huge windfall for them Do we want mining of it? Is social welfare telling us to get the oil out or leave the oil undisturbed? AP is pro development because it requires you to use the land, but with environmental concerns and everything maybe we want the land to remain undisturbed and not be developed Law requires at a minimum that you show up to protect your interest at least every so often by binging a lawsuit in a timely fashion (whatever your state defines as timely) Rights conception kicks in as a concept of dignity, autonomy, or idiosyncratic interest in that land. You somehow have established roots, and that gives you a kind of personal stake in this land that we really do not want to disturb unless we absolutely have to after a long period of time (a deep reliance internet—and this also goes to settled expectations) Doesn't explain tacking, but might be something we want to consider

Sawada v. Endo

(p. 684) Tenancy by the Entirety: an example of modernizing TBTE doctrine What happened? Mrs. Sawada was injured after being hit by a car driven by Mr. Endo, one of the Defendants. Mr. Endo had no liability insurance. By deed dated prior to the accident, but recorded after the accident, the Defendants Mr. and Mrs. Endo conveyed their real property—their house—to their sons for no consideration. We think that this was a fraud attempt to prevent the house from being taken in the suit over the car wreck Plaintiff sued defendant for the accident and received a damages judgement against him, but the house could not be attached to the damages amount due to the fact that the defendants had conveyed it The Plaintiff sued to set aside the conveyance of the Defendants' property. The trial court refused to set aside the conveyance and the Plaintiff appealed. Here, it is only fraud if the Sawadas could get to the Endo's property in the first place The court rules that the Sawadas could never get to the property because it was held in TBTE. Under TBTE, the creditors of one owner in a TBTE cannot attach to a single owner's joint share in the property Why hold this way? The Married Women's Property Acts equalizes the rights of men and women under property law Here, the court chooses to interpret that as equally disabling them both from acting unilaterally and protecting them both from each other's creditors Additionally, from a public policy perspective, a family owning real property is the most valuable asset, so to allow creditors to get at that asset would undermine the whole family unit Is this fair to the Sawadas? Obviously not. But can it be justified? Hawaii thinks that the Sawadas could better protect themselves by getting insurance New Jersey might say something different: In NJ, a Group II state, individuals can sell and levy their property interests subject to a right of survivorship What this means is that in this case, the creditor would get the estate for the life of the debtor spouse, and when the debtor spouse dies they would retain the estate unencumbered Notice that there are many different ways this rule could have been set up: No attachments of TBTE property You can attach the right of survivorship from the TBTE You can attach the TBTE during the time while both are alive, subject to the possibility that the spouse not in debt [different options p. 685-686] The last three are all weird, but we have this because you might want to be able to enable both parties to attach in certain circumstances Kidwell dissent here: The MWPA is designed to bring women up to the level of men in the modern era, not bring both down to the level of the common law doctrine "The majority reaches its conclusion by holding that the effect of the [MWPA] 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 wife's right of alienation of her interest to place it on a position of equality with the husband's." p. 688 Seems to think husband had a right or entitlement to be pursued but creditors, and he thinks equality here requires enable both of them rather than disabling both. Take a view on this!

Minjak Co. V. Randolph

(p. 865) What happened? Tenants here signed a commercial lease with their landlord, though they used 2/3 of the loft space as a music studio and 1/3 as residential space for the two of them to live. Then, chaos ensues: Water leaked from the upstairs neighbors, who the landlord allowed to sell jacuzzis out of their space (at least 40 separate water leaks), and ruined some of the Randolph's things (including some of their musical instruments) Sand and sawdust seeped into the apartment from the fifth floor tenant sandblasting their walls Landlord had the elevator shaft on the tenant's side of the building removed, raising huge clouds of dust and causing the musical equipment to have to be covered at all times and giving the tenants health problems The stairs were demolished with no warning signs posted Debris fells from the sealing onto the floor of the tenant's loft Workmen mixed cement right on the tenant's loft's floor A new entrance door to the loft was installed very sloppily, leading to loose bricks falling on the tenant's head as she closed the door Noise was deafening Despite all of this, the tenants don't leave, but instead they stop paying rent. The landlord then sued them for nonpayment, and the tenants brought the defense that they could not use 2/3 of the loft space and were entitled to a rent abatement for being unable to use that, and they were entitled to a further rent abatement for the landlord's failure to provide essential services in the remaining livable 1/3. The issue here is that the defendants didn't leave. Under the doctrine of constructive eviction, you only count if your premises becomes entirely uninhabitable, and the fact that they were able and did in fact stay would traditionally have eviscerated that defense Court thus has to adopt a new rule for tenants who don't leave: The court relies on East Haven Associates v. Gurian and allows for a defense of partial constructive eviction after considering fairness and social policy "We agree with the holding and reasoning of [East Haven] that a tenant may assert as a defense to the nonpayment of rent the doctrine of constructive eviction, even if he or she has abandoned only a portion of the demised premises due to the landlord's acts in making that portion of the premises unusable by the tenant. Indeed "compelling considerations of social policy and fairness dictate such a result." p. 867 Why? What is the policy underlying this decision? We don't want to force people to leave before they can defend themselves, especially when we have a residential housing shortage Gurian (p. 870) is residential and articulates this reasoning in their decision: "It makes no sense at all to say that if part of an apartment has been rendered uninhabitable, a family member must move from the entire dwelling before it can seek justice and fair dealing." Would this be the same in the commercial setting? We could make the argument here that the Minjak court is already applying this commercially because this was a majority commercial lease already But we can certainly make the argument from both sides: Commercial: doesn't have the same policy-backed push around housing shortages, being ousted and homeless and a right to be anywhere, etc. Commercial businesses in a commercial setting should be more robust than a familial housing situation Also, we may want to have a commercial business move so that new businesses could move in On the flip side, though, we don't want landlords of any kind to try to force a tenant out to get a better deal, which the traditional rule encourages Note that under the court's new rule, punitive damages are also possible if the landlord's actions or inactions are intentional or malicious Why is the landlord not being amenable here? He wants them to leave! (A reverse passover case) It is possible he could rent the space to someone else for more money now that commercial business is booming in his area, so he wants to move this set of tenants along But these crazy people stay! Why? They probably got a good deal here They have no place else to go They want to say F you to the landlord for being a jackass Court does not want to give landlords the leverage to force tenants to leave

Johnson v. M'Intosh

(p. 88) Huge case in American history We start with this case to learn about chain of title, and this case is particularly important because it establishes the basis for ownership of land in the United States We want to know what the moves are here. Where does one group's ownership end and the next begin? Which are good moves, and which are bad moves? What could have been decided otherwise? What is happening here? Johnson (P) is suing to eject M'Intosh (D) for trespassing on his land and to gain title to the land Johnson claims to have inherited the land from Viviat and Thomas Johnson (his father), who had purchased the land for $31,000 from the Piankeshaw and Illinois Indians in 1175, who probably got the land from a divine grant from God M'Intosh claims to have gotten the land from a grant from the United States in 1818, who got the land after it was ceded to the US by Virginia. Virginia had gotten the land from the Crown who had purchased the land from the Virginia Company, which we think probably got the land via discovery. Importantly here, there is also a claim that the US acquired title to the land from the Piankeshaw Indians directly What are the arguments? Johnson argues that we bought this land from the Ps/Is and you should recognize that conveyance because it occurred before the US had claim to the land M'Intosh argues that the Ps/Is didn't own and couldn't sell the property because they had no concept of individual property. Rather, the land was treated as common property, and the US acquired ownership by cultivation or use of the land Overall, M'Intosh's theory us that the Crown made the land theirs by discovery: they sailed here, planted their flag, and claimed ownership. And by discovery, they were granted absolute ultimate title over the European Competitors as well as some options for title over the natives Here, there are three possible interpretations of what the court says about title in this case: Absolute discovery reading: US received the land from a former discovery by conquest; gave them absolute title so that the Native Americans had no property rights and the Crown/US could do whatever they wanted to do with that land afterwards "This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession." Least respectful of Native American Rights Modified discovery reading: US received land through England's discovery which gave them an exclusive right to acquire the land/deal in the land with indigenous peoples; Natives retained their right to occupy the land then so their property rights must be extinguished either through conquest, purchase, or consent Moderately respectful of the Native Americans This is closer to what the opinion actually says and is probably the best reading of it Rule of discovery extinguishes the Piankeshaw's ability to sell to anybody else or be conquered by anyone else: they can only deal w/ discovering nation Native-controlled reading: native inhabitants can grant and annul land grants under their law, and if Johnson wants that land grant rectified, then he would have to take it up with their legal system In other words, Piankeshaw were sovereign and could sell their land, but Viviat and Johnson bought the land under Piankeshaw law. The Piankeshaws had the right to annul that land grant and give it to someone else by treaty (here, the US). If they want that fixed, then, they have to take it up with the Piankeshaw courts, which really don't exist. This is really more of an aside argument that is only made possible by the fact that the United States has this claim of acquisition by treaty with the Piankeshaws Notably, Johnson would never win this case because it would set a horrible precedent and would call into question all of the western settlement that had happened in the country Marshall knows this has to happen "However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice." p. 95 "After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar; than by its intrinsic difficulty, the court is decidedly of the option, that the plaintiffs do not exhibit a title..." p. 96 But Marshall is not a fan of the Lockean theory of land development. His private opinion is that this is all BS and the moral basis for taking this land is sketchy and the settlers are "pompous potentates" p. 93 starred language bottom of 94 starred language 93 into 94 bracketed language 91 bracketed language This case matters in particular because there are more contemporary cases where it matters which reading we adopt:

Commonwealth v. Fremont Investment & Loan

(p. 961) What happened? At this time, AGs across the country are starting to get concerned and bringing actions against mortgage originators/banks who are engaging in these bad lending practices Here, the Commonwealth of Massachusetts's Attorney General's office brought a consumer protection enforcement action against the defendant, Fremont Investment & Loan. The claimed that in originating and servicing 14,578 loans—most of which had been dumped/sold to somebody else and 50-60% which were "subprime" mortgage loans—on borrowers' homes between 2004 and 2007, Fremont acted unfairly and deceptively in violation of M.G.L. c. 93A § 2, barring Fremont's ability to foreclose on loans with features that the judge described as "presumptively unfair." Subprime mortgage loans (as defined in footnote 13): loans made two borrowers who generally would not qualify for traditional loans offered at the generally prevailing rate of interest for conventional mortgages Fremont was offering loans with 4 conditions, which, in combination with one another, made them unfair in the trial court's eyes: The loans were ARM (adjustable rate mortgage) loans: these loans had an introductory rate period of three years or less where the repayment percentage was much lower than an average loan (teaser rates) but then skyrocketed after the initial period The introductory teaser rate was at least 3% less than the fully indexed rate, creating a huge barrier after the initial years The debt to income ratio on the loans would have exceeded 50% had the Fremont borrowers measured the borrower's debt by monthly payments against the fully indexed rate instead of the teaser rate, meaning that the lender's debt each month would exceed half their income The loan to value ratio was near one hundred percent in every case, meaning the loan financed almost the entire value of the total mortgage Additionally, footnote 16 tells us that Fremont made nearly 40% of its loans without substantiating documentation of people's incomes. In other words, they just took people's word for it on their salaries. Mass AG brought suit under the general consumer protection statute in the state of Massachusetts, which does not actually define the loan. Its only requirement is that it makes unlawful any "unfair or deceptive acts or practices in the conduct of any trade or commerce." This is very broad and this is a STANDARD, not a rule Fremont argues that they are in compliance with 183C and Mass General Laws 93A§3, as what they did was permitted under industry practices The court says this is wrong: The court is not retroactively applying an unfairness standard against you. You knew or should have known borrowers would be unable to repay their loans, which is de facto unfair, and we have testimony that all of these things that you did constitute predatory lending Also, you don't get a free pass just because you technically complied with the statute's requirements "There is no limit to human inventiveness in this field" p. 965 What is the remedy here? Court places an injunction or freeze on the foreclosure process We don't get rid of the mortgages and corresponding foreclosures, we just put a moratorium on them, slowing down the foreclosure process and implicitly restructuring the mortgages to try to avoid foreclosures on all of them Some of the concerns that arise in this case are starting to surface again today with predatory lending. Our hope is to address this with more legislation/regulation at the federal level. This is not a doctrinal case. It just gives us a window into the subprime mortgage crisis and how courts sought to address those concerns

Pennsylvania Central Transportation v. New York

Appellant owned the Grand Central Terminal, which was designated by application of New York's Landmarks Preservation Law to be a landmark. Thereafter, the Appellant entered into a renewable 50-year lease with UGP Properties, Ltd., a United Kingdom company, under which the UGP agreed to construct a multistory office building on top of the terminal. The plans for the new office building were submitted to the Commission for approval, which was denied. The plans were in conformity with existing zoning regulation, but the Commission of Landmarks Preservation nonetheless denied the applications for certificates of "no external effect" and for "appropriateness." The Appellants did not pursue any administrative remedies because none were available. The Appellants did not decide to submit other plans to the Commission, either. Instead, the Appellants filed suit in state court seeking a declaratory judgment, injunctive relief barring the City from using the Landmarks Law to impede the construction of any structure that might otherwise be lawfully constructed, and damaged for the temporary "taking" that occurred between the designation date (August 2, 1967) and the date when the restrictions arising under the Landmarks Law would be lifted. The trial court granted injunctive and declaratory relief, but severed the question of damages for a "temporary taking." The New York Court of Appeals affirmed, and summarily rejected any claim that the Landmarks Commission had taken any property without just compensation because the law had not transferred control of the property to the city, but only limited the Appellants' use. The Appellants appealed. NO taking Court said that the station did not have the right to realize the full value of their property, and in applying the ad hoc test, found that this was not a regulatory taking Owner owns: spatially, the question is do they own the air rights? Answer here is yes H/B: becomes more complicated. Court says that they are preventing a harm by preserving the aesthetics of the original building. Dissent says the opposite—this is just bestowing an individual benefit on everyone else State law: Don't talk about nuisance, but do know how they track through precedents in the opinion (Euclid → Kaiser Aetna → Causby) Kaiser-Aetna: yes taking, p. 1211 Causby: flights over a person's land that destroyed the land's present use as a chicken farm constituted a taking See p. 1194-1196 Justice: This is ok because this look just like zoning; you have a type of building so you are a bit restricted Dissent says this is not ok because it targets individual people So then ad hoc: Character of the gov action: not a targeting, done through fair process, meant to do a good and maybe prevent a harm → not taking Diminution in value: not allowing you to maximize, but you are not losing value and we don't have to let you maximize Investment: not as invasive as forcing you to knock down a tower you have already built. This is fine as long as we don't completely interfere. We are not in the business of insuring you against losses Rehnquist in dissent: this isn't zoning and it isn't a nuisance

Commonwealth v. Fremont Investment & Loan

At this time, AGs across the country are starting to get concerned and bringing actions against mortgage originators/banks who are engaging in these bad lending practices Here, the Commonwealth of Massachusetts's Attorney General's office brought a consumer protection enforcement action against the defendant, Fremont Investment & Loan. The claimed that in originating and servicing 14,578 loans—most of which had been dumped/sold to somebody else and 50-60% which were "subprime" mortgage loans—on borrowers' homes between 2004 and 2007, Fremont acted unfairly and deceptively in violation of M.G.L. c. 93A § 2, barring Fremont's ability to foreclose on loans with features that the judge described as "presumptively unfair." Fremont was offering loans with 4 conditions, which, in combination with one another, made them unfair in the trial court's eyes: The loans were ARM (adjustable rate mortgage) loans: these loans had an introductory rate period of three years or less where the repayment percentage was much lower than an average loan (teaser rates) but then skyrocketed after the initial period The introductory teaser rate was at least 3% less than the fully indexed rate, creating a huge barrier after the initial years The debt to income ratio on the loans would have exceeded 50% had the Fremont borrowers measured the borrower's debt by monthly payments against the fully indexed rate instead of the teaser rate, meaning that the lender's debt each month would exceed half their income The loan to value ratio was near one hundred percent in every case, meaning the loan financed almost the entire value of the total mortgage Additionally, footnote 16 tells us that Fremont made nearly 40% of its loans without substantiating documentation of people's incomes. In other words, they just took people's word for it on their salaries. Mass AG brought suit under the general consumer protection statute in the state of Massachusetts, which does not actually define the loan. Its only requirement is that it makes unlawful any "unfair or deceptive acts or practices in the conduct of any trade or commerce." Fremont argues that they are in compliance with 183C and Mass General Laws 93A§3, as what they did was permitted under industry practices The court says this is wrong: The court is not retroactively applying an unfairness standard against you. You knew or should have known borrowers would be unable to repay their loans, which is de facto unfair, and we have testimony that all of these things that you did constitute predatory lending Also, you don't get a free pass just because you technically complied with the statute's requirements "There is no limit to human inventiveness in this field" p. 965 What is the remedy here? Court places an injunction or freeze on the foreclosure process We don't get rid of the mortgages and corresponding foreclosures, we just put a moratorium on them, slowing down the foreclosure process and implicitly restructuring the mortgages to try to avoid foreclosures on all of them This is not a doctrinal case. It just gives us a window into the subprime mortgage crisis and how courts sought to address those concerns

French v. Piontkowski

Can a neighboring landowner get prescriptive easement for the recreational use of a non-navigable, artificial body of water? PP = Δs Piontkowski lose in trial court where Πs Frech were given a prescriptive easement for noncommercial recreational purposes to use the reservoir owned by the Δs. Πs were also found to have record title to disputed land neighboring the edge of the reservoir or they had acquired the neighboring land through adverse possession Facts - Reservoir was made in 1890 by a dam that is owned by Δs. Δs own the reservoir and the land under it and the Πs own the land abutting (touching, next to) the reservoir from an approved subdivision in 1974. Π Frech owned lot starting in 1977, Π Anderson since 1997 (which they acquired from Marzano who had it in 1979). Over 25+ years Πs Frech, Anderson, and Marzano have used the reservoir for rec purposes Δ claim that trial court improperly determined as a matter of law that an abutting landowner can get prescriptive easement for recreational purposes in a non-navigable artificial body of water - use 2 separate arguments (1) Getting easement over an artificial body of water is too big of a burden on the servient estate (piece of land that is subject to easement) by forcing the owner to maintain the water - in this case by maintaining the dam Court doesn't find the burden of maintaining the dam persuasive Δ rely on principle that someone who has a prescriptive easement can take advantage of it so long as it doesn't burden the servient tenement Court says this is relevant to an easement acquired by prescription but doesn't specify if it applies to an easement that is acquired as a matter of law Court also says that the level of burden is at best unclear, especially since Πs contested that the Δs would have to maintain the dam forever (2) Getting an easement for rec purposes of the water gives notice issues that don't exist with easements for land or easements for commercial purposes over water Δs say that recreational use of the water is too intermittent and don't give enough time to give sufficient notice Δs say that trial court was wrong about Πs use being open and notorious and that the use of the reservoir was continuous and uninterrupted To show that you got easement by prescription the use of the property needs to be open, visible, continuous, and uninterrupted for 15 years Purpose of open and visible is to give the owner full knowledge and opportunity to assert their rights Families were constantly on the lake, they started using the lake immediately after purchasing the properties Seasonal use is sufficient to satisfy continuity requirement The nature of the easement determines what type of evidence is required to prove prescriptive easement Δs say they put up no trespassing signs and that they told one Frech kid to leave the property and that the sent a letter - trial court finds these actions to not be enough to interrupt Πs use of the water Statute says that the owner of the land over which a right-of-way or other easement is claimed or used can give notice in writing of his intention to dispute their right of way/easement to the person claiming or using the privilege and that written notice is enough to consider an interruption of the use Δs actions do not satisfy these requirements Δs also say that there was insufficient evidence to support that the Πs had used the reservoir under a claim of right The requirement that the use must be exercised under a claim of right isn't proof of a claim actually made and brought to the attention of the owner, it means nothing more than a use of the right Without recognition of the right of the landowner there is no proof of an express permission of the owner or of an express claim of right by the person using the way No testimony showed thet the Πs asked for or were given permission to use the reservoir Removing the signs means they used the reservoir knowing they did not have permission Πs rely on testimony that Δs had specifically asked for permission to us the reservoir, but trial court did not give credit to testimony Πs also rely on testimony that Πs inquired about joining the beach association (group where the Δs would lease the land adjacent to reservoir and then the group members would pay for the right to use it) but none of the Πs actually joined Δs are saying because the Πs considered and rejected the option of paying the Δs to use the reservoir, there was not enough evidence to show that using the reservoir was a claim of right Court says that the Πs rejection of beach association is because the Πs didn't recognize Δs authority to exclude them from the reservoir

Riverview Realty Co. v Perosio

December 27, 1972 Perosio enters into written lease with Π Riverview Realty to rent an apartment. Lease was for a term of Feb 1, 1973 - Jan 31, 1975, lease prohibits subletting or assigning apartment without landlord's consent Δ Perosio moves in and occupies until Feb 1974 when he leaves after having paid rent through Jan 31, 1974 Landlord files coplaint Oct 31, 1974 asking $4k for the lease from Feb 1, 1974 - Oct 31, 1974 Δ answers complaint by saying there has been valid surrender of the premses and that Π failed to mitigate dmaages Trial court grants motion for SJ against Δ Appellate court affirms

Fair Housing Counsel of San Fernando Valley v. Roommate.com, LLC

Defendant, Roommate.com, LLC, manages a website to find a roommate. On the website, users may post information such as their sex, familial status, religion, race, and sexual orientation. Plaintiffs, Fair Housing Councils of San Fernando Valley and San Diego, initiated this action on the grounds that Defendant's website was discriminatory and against the Fair Housing Act (FHA). The question is can you advertise under the FHA that you would like a roommate who does not listen to jazz, that does not wear perfume, that does not have frequent overnight visitors, and that does not have furry pets? The answer to that is yes. Of course you can! Kozinski's reasoning: Kozinski says that we cannot read "portion thereof" to include roommate relationships because this would lead to awkward results Practical reasoning or purpose based reasoning: he says essentially, the literal words look like they could apply here (text), but that would be a problem for intentional and purposeful reasons It can't have been the intent of Congress to include roommates because in the 1960s it would have been so scandalous to have co-ed roommate situations Then, the awkward results come it, which is just a purpose inquiry. We don't attribute to the legislature the intent or the purpose to do something that would be awkward or stupid or idiotic or contrary to some set of values that seems obvious The value that seems obvious here that congress could not have wanted to override in adopting the FHA is freedom of association: the idea that in the bill of rights we have freedom of intimate association, which goes a little bit back to the intimate associations in 1303 and the public private distinction before That is, we are not going to enforce anti-discrimination laws against you if you are just throwing a dinner party And there is a cannon of statutory construction that says when you read statutes, we try to avoid con problems. If tit would raise the con problem of free association to read the statute this way, then we should avoid that reading What would a dissent here look like? The statutory question is whether the statute applies to a dwelling and if the roommate situation is a dwelling? We would point to the language that says in 3602(b)'s definition of dwelling "any building, structure, or portion thereof" It says or portion thereof not once but twice We would this say the statute anticipated this, the line can't be drawn at the unit door because any portion thereof is included Also, 3604(c) talks about advertising the sale or rental of a property with any such discrimination, and Roommate is a publisher of these things stuff like SWCF (single white christian female) as their preferences! Which is saying you don't want those other things that aren't those things. That runs afoul of everything: race, sex, religion, familial status. It's a hugeeeee no no This is even though under 3603(b) you might have had an exemption for a roommate if you weren't advertising it, because you are advertising it What do we think? Is it violative of the right of association to not permit people to do that? That is the claim, the claim is we can't allow ourselves to read the FHA this way because there is such a strong right of association? See below at the link What is interesting about the roommate case is that there is a textualist argument for treating roommates as falling under the fair housing act, and judge admits as such. He uses maybe a couple of different approaches: Intent: what was the purpose of the people that drafted the statute Purpose: what is the statute objectively meant to do or not do? We don't want to read the statute to entrench on such important privacy interests Adopting a canon of constitutional avoidance in this case So, case will turn on the weight of the constitutional interest in the case. We have seen this before where the law tries to think about the private or public aspects at issue: the more the property is open to the public, the more the courts are prepared to regulate the space in these ways So here, we look at history, text, intent, purpose or goals, etc. When you take a look at legal texts, you are already bringing to the table a whole set of presumptions about them: they are law (or we think they are law), which comes with what law is supposed to do, some theories about law, the communicative intent of some body that created the law, etc. So the interpretive act is present immediately as soon as we see a legal text In the roommate case, we see a kind of textual convention being put up against a purposive convention tagged with an unofficial canon of constitutional avoidance to create an exception for roommate advertising How would we have written the statute to make sure if we wanted to so that it did apply to roommates? Maybe define roommates in definitions alongside families, to indicate that it may qualify for exemptions What about just saying this statute applies to roommates too, period. We don't talk that way in statutes, but why not? Partially because it is not anticipated here. So then how does a court many many years later try to figure out how to apply that to unanticipated circumstances? They look to competing principles or values: Eliminate discrimination and eliminate the public advertisement of discrimination Competing against a respect for intimate spaces. How do we choose between them? Important this this judge does a lot of armchair sociology and some intuitions we have about roommate settings? (p. 1024) What happened? Defendant, Roommate.com, LLC, manages a website to find a roommate. On the website, users may post information such as their sex, familial status, religion, race, and sexual orientation. Plaintiffs, Fair Housing Councils of San Fernando Valley and San Diego, initiated this action on the grounds that Defendant's website was discriminatory and against the Fair Housing Act (FHA). The question is can you advertise under the FHA that you would like a roommate who does not listen to jazz, that does not wear perfume, that does not have frequent overnight visitors, and that does not have furry pets? The answer to that is yes. Of course you can! Can you say I am someone who keeps a kosher kitchen, would you be amenable to also keeping a kosher kitchen and not run afoul of the FHA? Probably. Why? You are not discriminating based on religion, you just have a certain practice. Any things like bathroom hogs, early riser, messy roommates, etc. doesn't violate the FHA'I would like you not to walk around in your towel because you are a boy or you are a girl. What would a dissent here look like? The statutory question is whether the statute applies to a dwelling and if the roommate situation is a dwelling? We would point to the language that says in 3602(b)'s definition of dwelling "any building, structure, or portion thereof" It says or portion thereof not once but twice We would this say the statute anticipated this, the line can't be drawn at the unit door because any portion thereof is included Also, 3604(c) talks about advertising the sale or rental of a property with any such discrimination, and Roommate is a publisher of these things stuff like SWCF (single white christian female) as their preferences! Which is saying you don't want those other things that aren't those things. That runs afoul of everything: race, sex, religion, familial status. It's a hugeeeee no no This is even though under 3603(b) you might have had an exemption for a roommate if you weren't advertising it, because you are advertising it Kozinski does not reason this way though: Kozinski says that we cannot read "portion thereof" to include roommate relationships because this would lead to awkward results Practical reasoning or purpose based reasoning: he says essentially, the literal words look like they could apply here (text), but that would be a problem for intentional and purposeful reasons It can't have been the intent of Congress to include roommates because in the 1960s it would have been so scandalous to have co-ed roommate situations Then, the awkward results come it, which is just a purpose inquiry. We don't attribute to the legislature the intent or the purpose to do something that would be awkward or stupid or idiotic or contrary to some set of values that seems obvious The value that seems obvious here that congress could not have wanted to override in adopting the FHA is freedom of association: the idea that in the bill of rights we have freedom of intimate association, which goes a little bit back to the intimate associations in 1303 and the public private distinction before That is, we are not going to enforce anti-discrimination laws against you if you are just throwing a dinner party And there is a cannon of statutory construction that says when you read statutes, we try to avoid con problems. If tit would raise the con problem of free association to read the statute this way, then we should avoid that reading The question then becomes how robust is this right of intimate association? We don't really know, we would have to go back and look at the cases Kozinski says here though that that right extends to the choice of a roommate What do we think? Is it violative of the right of association to not permit people to do that? That is the claim, the claim is we can't allow ourselves to read the FHA this way because there is such a strong right of association Maybe part of it is you get to pick both ways, you have a right to choose who you associate with as well as a right to choose who you don't want to associate with This might be an expansion of the right to associate, because we have randomly assigned roommates all over the place already, which suggests we don't have a firm right to association here. Maybe it is not so intimate in this way What is so important about the statute is that it has 3604(c) which says the newspaper or the website or the board doesn't have any intent, it is a strict liability violation if you choose to publish it, which is problematic The initial filtering is problematic, but also considering individual choice and choosing is important and we can't completely disregard that we might be sharing a space with someone who might be a threat to us Gender/sex is very different than sex. There are legitimate reasons to discriminate on the basis of sex and on the basis of religion, but race looks a little different here What is the difference between shifting groups out at the very beginning or shifting them out at the end? Is there an importance for not permitting roommate.com to advertise or promote that on the front end if the same thing is going to happen on the back end anyways. If someone wants to live with a white woman, they are not going to choose a non-white woman just because you're not providing that service. The argument that this matters is that we don't want the institution to make it easier to have those biases, making discrimination institutionalized as opposed to personal This would be under 3603(b) exemptions, you can fall under the exceptions or you can not. You bring it to the public sphere when you have these preferences, and we don't want to make it easier on you to have this expressive harm happening They invoke a whole grab bag of intimacy cases to say roommates are intimate and we should treat this the same, but our question remains: is this really that? One question too is about social norms: have social norms changed since this judge never really had a roommate, and roommates today are much more common? The social norms of association also should maybe not be what is driving this, the purpose of the FHA should be what drives this(p. 1024) What happened? Defendant, Roommate.com, LLC, manages a website to find a roommate. On the website, users may post information such as their sex, familial status, religion, race, and sexual orientation. Plaintiffs, Fair Housing Councils of San Fernando Valley and San Diego, initiated this action on the grounds that Defendant's website was discriminatory and against the Fair Housing Act (FHA). The question is can you advertise under the FHA that you would like a roommate who does not listen to jazz, that does not wear perfume, that does not have frequent overnight visitors, and that does not have furry pets? The answer to that is yes. Of course you can! Can you say I am someone who keeps a kosher kitchen, would you be amenable to also keeping a kosher kitchen and not run afoul of the FHA? Probably. Why? You are not discriminating based on religion, you just have a certain practice. Any things like bathroom hogs, early riser, messy roommates, etc. doesn't violate the FHA'I would like you not to walk around in your towel because you are a boy or you are a girl. What would a dissent here look like? The statutory question is whether the statute applies to a dwelling and if the roommate situation is a dwelling? We would point to the language that says in 3602(b)'s definition of dwelling "any building, structure, or portion thereof" It says or portion thereof not once but twice We would this say the statute anticipated this, the line can't be drawn at the unit door because any portion thereof is included Also, 3604(c) talks about advertising the sale or rental of a property with any such discrimination, and Roommate is a publisher of these things stuff like SWCF (single white christian female) as their preferences! Which is saying you don't want those other things that aren't those things. That runs afoul of everything: race, sex, religion, familial status. It's a hugeeeee no no This is even though under 3603(b) you might have had an exemption for a roommate if you weren't advertising it, because you are advertising it Kozinski does not reason this way though: Kozinski says that we cannot read "portion thereof" to include roommate relationships because this would lead to awkward results Practical reasoning or purpose based reasoning: he says essentially, the literal words look like they could apply here (text), but that would be a problem for intentional and purposeful reasons It can't have been the intent of Congress to include roommates because in the 1960s it would have been so scandalous to have co-ed roommate situations Then, the awkward results come it, which is just a purpose inquiry. We don't attribute to the legislature the intent or the purpose to do something that would be awkward or stupid or idiotic or contrary to some set of values that seems obvious The value that seems obvious here that congress could not have wanted to override in adopting the FHA is freedom of association: the idea that in the bill of rights we have freedom of intimate association, which goes a little bit back to the intimate associations in 1303 and the public private distinction before That is, we are not going to enforce anti-discrimination laws against you if you are just throwing a dinner party And there is a cannon of statutory construction that says when you read statutes, we try to avoid con problems. If tit would raise the con problem of free association to read the statute this way, then we should avoid that reading The question then becomes how robust is this right of intimate association? We don't really know, we would have to go back and look at the cases Kozinski says here though that that right extends to the choice of a roommate What do we think? Is it violative of the right of association to not permit people to do that? That is the claim, the claim is we can't allow ourselves to read the FHA this way because there is such a strong right of association Maybe part of it is you get to pick both ways, you have a right to choose who you associate with as well as a right to choose who you don't want to associate with This might be an expansion of the right to associate, because we have randomly assigned roommates all over the place already, which suggests we don't have a firm right to association here. Maybe it is not so intimate in this way What is so important about the statute is that it has 3604(c) which says the newspaper or the website or the board doesn't have any intent, it is a strict liability violation if you choose to publish it, which is problematic The initial filtering is problematic, but also considering individual choice and choosing is important and we can't completely disregard that we might be sharing a space with someone who might be a threat to us Gender/sex is very different than sex. There are legitimate reasons to discriminate on the basis of sex and on the basis of religion, but race looks a little different here What is the difference between shifting groups out at the very beginning or shifting them out at the end? Is there an importance for not permitting roommate.com to advertise or promote that on the front end if the same thing is going to happen on the back end anyways. If someone wants to live with a white woman, they are not going to choose a non-white woman just because you're not providing that service. The argument that this matters is that we don't want the institution to make it easier to have those biases, making discrimination institutionalized as opposed to personal This would be under 3603(b) exemptions, you can fall under the exceptions or you can not. You bring it to the public sphere when you have these preferences, and we don't want to make it easier on you to have this expressive harm happening They invoke a whole grab bag of intimacy cases to say roommates are intimate and we should treat this the same, but our question remains: is this really that? One question too is about social norms: have social norms changed since this judge never really had a roommate, and roommates today are much more common? The social norms of association also should maybe not be what is driving this, the purpose of the FHA should be what drives this

Minjak Co. v. Randolph

Facts - Randolph and Kikuchi rent a loft from Π Minjack, during that time there are severe water leaks, sand seeping in, tons of dust due to Minjak's construction which caused damage to their stuff Could no longer use parts of the studio Minjak did nothing to minimize the intrusions after requests Δs begin to suffer from health problems as a result and decrease dtheir rent Π brings action to recover A tenant can assert a defense of constructive eviction even if he remains in possession of the premises, the tenant doesn't need to abandon all of the premises, just the portions that are made uninhabitable by the landlord Finding is backed by general principles of fairness

Javins v. First National Realty Corp

Facts - two people rent apartments in the same building from First National Realty (FNR) and don't pay rent for April and say there were numerous violations of housing regulations PP - FNR files separate actions in on April 8, 1966 seeking possession on the grounds that the appellants defaulted paying rent for the month of April Question - whether housing code violations that happen during the term of the lease has any effect on the tenants obligation to pay rent A warranty of habitability, measured by standards created by housing regulations, is implied by operation of law into leases of urban dwelling, warranty gives rise to remedies for breach of contrac Traditionally a lease was the conveyenace of an interest in land and courts have usually utilized the special rules governing property transactions Assumption of landlord-tenant law that a lease conveyed to the tenant an interest in land may have been reasonable in a rural society it may continue to be reasonable in some leases with farming or commercial In modern times, the value of the lease to the tenant is a place to live, not the land itself like the above examples They want shelter, don't have interest in other parts of the land Holding reflects a belief that leases of urban dwelling units should be interpreted and construed like any other contract Modern contract law says that buyer must rely on skill and honesty of seller to make sure that the goods and services purchased are high quality Courts have sought to protect buyer expectations and have widened seller's responsibility through implied warranties This has expanded to real property too regarding the quality of a product Ex. Builders found liable for breach of an implied warranty that all building regulations had been complied with Courts still haven't implied warranties regarding quality - specifically warranty of habitability, no explanation other than relying on old common law rule that the lessor doesn't need to repair Court says the old no-repair rule doesn't work wth the obligations imposed on the landlord in a modern housing setting Landlord has obligation to keep premises in a habitable condition (1) old rule was based on factual assumption that are no longer true and cannot be justified This idea originated in the middle ages for an agrarian economy where land was more important than the living structure included in the leasehold Farmer could make his own repairs Courts slowly began to realize that the factual assumptions were no longer accurate in some cases Ex. Even if building was destroyed tenant would still pay rent because the land was more important, this would create ridiculous rules now Today's tenants are not interested in the land, they want a house to live in (2) the consumer protection cases discussed above require that the old rule be abandoned to bring residential landlord-tenant law in armony with the principles those cases rest on (3) Today's urban housing market means the old rule needs to be abandoned Today tenants want a place to live and don't have maintenance skills like a farmer would Tenants move around a lot Today's dwellings are hard to repair

Martin v. City of Boise

Holding - Eight amendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when they have no home or other shelter Violates Eighth Amendment because it imposes criminal sanctions against unhoused individuals when no other shelter is available Πs are former Boise residents who are unhoused, say they were cited by Boise police for violating two city ordinances, seeking retrospective relief Camping ordinance - makes it a misdemeanor to use any public place for camping Disorderly Conduct Ordinance - bans occupying, lodging, or sleeping in any building structure or public place without permission of the owner or person entitled to possession or in control of Πs had served time for violating ordinances Jones v. LA - said that if there was more homeless individuals than available beds in shelters then they couldn't enforce a similar ordinance, not binding on this court since there was a settlement but this court agrees with the reasoning and conclusion but also takes it further with the Eighth Amendment Background - Boise has an increasing unhoused population with 867 individuals and 3 shelters with 354 beds and 92 overflow mats The curle and unusuall punishments clause of 8th amendment precludes the enforcement of a statute prohibiting people from sleeping outside when there is no access to alternative shelter 8th amendment does 3 things (1) limits type of punishment gov can impose (2) prohibits punishment grossly disproportionate to the severity of the crime (3) places substantive limits on what gov can criminalize This is the limitation that's relevant in this case Cases construing substantive limits are rare and are limited to only being used sparingly Robinson - held that the 'status' of narcotic addiction as a criminal offense was invalid under the Cruel and Unuusal Punishmetn Clause Powell - Elaborates on this concept and distinguished a TX statute on public drunkness that the statute was not criminalizing alcoholism but instead the conduct of being publicly drunk Robinson precludes the criminalization of status, not involuntary conduct Criminal penalties can only be inflicted if the accused has committed some act that society has an interest in preventing, does n Principle brings the idea that Eight Amendment prohibits imposing criminal penalties for "sitting, sleeping, or lying" on public property - Jones mentions these are parts of being human Additionally the conduct is involuntary and can't be separated from status State cannot criminalize conduct that is an unavoidable consequence of being homeless Holding is narrowed that so long as there are more homeless people than available beds then the jurisdiction can't prosecute for sitting/lying/sleeping in public Doesn't force the city to make sufficient shelter Doesn't allow any who wants to just sit/lie/sleep in the streets As long as unhoused people do not have a place where they can lawfully be, the ordinances would be punishing them for something they may not be convicted of under the Eight Amendment Disorderly Conduct Ordinance is sweeping in scope Camping Ordinance defines camping broadly Dissent The decision would prevent local govs from enforcing a lot of other public health and safety laws (Ex. Public urination) Decision shackles the hands of public officials trying ot redress serious societal concern of homelessness A lot of these issues are due to legislative policy decisions and the criminal justice system and judiciary are not equipped to resolve constant social problems. Criminalizing conduct that that is a product of those problems is not for that reason constitutionally impermissible This is improperly injecting into public policymaking How do officials know when unhoused invididuals have the choice to sleep outdoors None of this info is reported or updated in real time Local govs wouldn't have the resources and would have to stop enforcing laws that prohibit public sleeping

Cox v. Glenbrook

In 1938 Henry Quill obtained the Quill Easement from the Glenbrook Company, which gave him use of the roads on Glenbrook Company's property. This was in 1938. After Quill's death, his property was sold, and came into the hands of Cox and Detrick. Cox and Detrick (Plaintiffs) plan to divide the estate into a minimum of 40 parcels and a maximum of 60 parcels to build homes. The Quill Easement is the only existing ingress and egress form the tract, but it is only so wide at most places for a single car to be on the roadway at a time (no room for passing). Plaintiffs want to widen the road used by Quill, and Glenbrook opposes this. Glenbrook Company has a resort business, which has a quiet atmosphere that the company wants to maintain. "The atmosphere sought to be maintained is that pf peace, seclusion and quiet." p. 525 The property has a beach, 30 guest cottages, a tennis court, riding stables, foot paths for hiking, horse trails for riding, a golf course, a post office, a rodeo area, a service station, a bar, a dining room, and a lounge "There is no gambling." !! p. 525 The lower court here chops the easement down to nothing (see p. 526). The court says that these restrictions are not appropriate and that to say the dominant parcel can only be used for single family occupancy use is not appropriate. Why? The court says that putting this restriction on the land destroys the character of the appurtenant easement but at the time the easement was created there was no doubt it was meant to be an appurtenant easement "To have and to hold said right-of-way and easement unto said grantee, his heirs and assigns forever." p. 526 — clear that the easement carries over to whoever comes to be in possession of the dominant estate And, there is a presumption as with the former case that the easement can be used even if that parcel is subdivided: each parcel enjoys the benefit of the easement But, we have this undue burden doctrine, and this is where the court really hits Cox and Detrick The court here says you get an easement through the back roads, but you can't do a damn thing to it, you can't widen it, you can maybe pave it, but not much else. To do anything else to it would amount to an undue burden on Glenbrook That is going to make it really hard for Cox and Detrick to subdivide this land like they want to They say at the end that they are not definitively deciding it would be an undue burden, but they are strongly cautioning against it This sounds like an advisory opinion to me! What it means to be an undue burden: this is just a reasonableness standard, and RS says he doesn't really care Cox and Derrick technically win here, but the court places so many restrictions on what they can actually do with their claim to the easement that it seems Glenbrook really wins. They win by losing. With easements, we always have this equitable question of how far does this go, and we saw this with Community Feed Store as well But this decision seems a little unfair. If you are going to say the easement is appurtenant, the whole point of that is to allow the subdivision to happen. And, the big problem here is that it is not clear exactly what language they would have put in the original agreement to anticipate this So then the court has to ask what our presumption is here. Which party do we favor? Do we favor C/D, and say you Glenbrook made this deal and could have/should have protected yourself more? Or should we say that Quill should have gotten more specificity? We want to know what our default is. This court chooses to put the onus on Quill to have gotten a broader grant, even though the grant doesn't put any kind of length or width restrictions on it Coase would have said without bargaining costs, the entitlement doesn't matter, we will get what we want through bargaining because someone will buy it But they have already sued each other so it seems they hate each other and transaction costs are thus high, so then we ask did the court do the right thing from the perspective of social welfare? Maybe the court should have asked what is fair? We can't be sure here because the language of the agreement is pretty flat So then we end up just with the judge's values, and this judge clearly values the quiet, serene family resort values with no gambling over big development So this is a good way of showing how values are imported into the language of the deal because the deal could go either way (p. 524) What happened? Henry Quill obtained the Quill Easement from the Glenbrook Company, which gave him use of the roads on Glenbrook Company's property. This was in 1938 After Quill's death, his property was sold, and came into the hands of Cox and Detrick. Cox and Detrick (Plaintiffs) plan to divide the estate into a minimum of 40 parcels and a maximum of 60 parcels to build homes. The Quill Easement is the only existing ingress and egress form the tract, but it is only so wide at most places for a single car to be on the roadway at a time (no room for passing). Glenbrook Company (Defendant) has a resort business, which has a quiet atmosphere that the company wants to maintain. "The atmosphere sought to be maintained is that pf peace, seclusion and quiet." p. 525 The property has a beach, 30 guest cottages, a tennis court, riding stables, foot paths for hiking, horse trails for riding, a golf course, a post office, a rodeo area, a service station, a bar, a dining room, and a lounge "There is no gambling." !! p. 525 Plaintiffs want to widen the road used by Quill, and Glenbrook opposes this. This is kind of the same case as Green v. Lupo but we like it anyways as an additional example You might have asked yourself the background question of why do we need this access road? Why isn't there a way to access the land on the other sides of the parcel? Likely that the owners of those other parcels were not willing to bargain for road creation The lower court here chops the easement down to nothing (see p. 526). They say that the easement must be used in a way that is consistent with the operation of the family mountain resort, that it allows for the use of the Glenbrook roads as those roads are presently constructed or as Glenbrook consents to them being used, and that the current proposed change to the reads constitutes an illegal or unjustified burden to be placed upon Glenbrook The court says that these restrictions are not appropriate and that to say the dominant parcel can only be used for single family occupancy use is not appropriate. Why? The court says that putting this restriction on the land destroys the character of the appurtenant easement but at the time the easement was created there was no doubt it was meant to be an appurtenant easement "To have and to hold said right-of-way and easement unto said grantee, his heirs and assigns forever." p. 526 — clear that the easement carries over to whoever comes to be in possession of the dominant estate And, there is a presumption as with the former case that the easement can be used even if that parcel is subdivided: each parcel enjoys the benefit of the easement But, we have this undue burden doctrine, and this is where the court really hits Cox and Detrick The court here says you get an easement through the back roads, but you can't do a damn thing to it, you can't widen it, you can maybe pave it, but not much else. To do anything else to it would amount to an undue burden on Glenbrook That is going to make it really hard for Cox and Detrick to subdivide this land like they want to They say at the end that they are not definitively deciding it would be an undue burden, but they are strongly cautioning against it "should they proceed with their proposed plan, the trier of facts in subsequent litigation, if it occurs, might or might not determine upon the evidence existing, that there use of the way causes an unreasonable burden upon the servient estate or unwarranted interference with the independent rights of others who have a similar right of use." p. 529 This sounds like an advisory opinion to me! What it means to be an undue burden: this is just a reasonableness standard, and RS says he doesn't really care Cox and Derrick technically win here, but the court places so many restrictions on what they can actually do with their claim to the easement that it seems Glenbrook really wins. They win by losing. With easements, we always have this equitable question of how far does this go, and we saw this with Community Feed Store as well But this decision seems a little unfair. If you are going to say the easement is appurtenant, the whole point of that is to allow the subdivision to happen. And, the big problem here is that it is not clear exactly what language they would have put in the original agreement to anticipate this The language as they have it seems to signify intent just to use the property Glenbrook could have added something else here to restrict this appropriately: a clause that says "so long as the estate is used as a single family residence" A restrictive covenant But they didn't add this language here! So then the court has to ask what our presumption is here. Which party do we favor? Do we favor C/D, and say you Glenbrook made this deal and could have/should have protected yourself more? Or should we say that Quill should have gotten more specificity? We want to know what our default is. This court chooses to put the onus on Quill to have gotten a broader grant, even though the grant doesn't put any kind of length or width restrictions on it Coase would have said without bargaining costs, the entitlement doesn't matter, we will get what we want through bargaining because someone will buy it But they have already sued each other so it seems they hate each other and transaction costs are thus high, so then we ask did the court do the right thing from the perspective of social welfare? We have no idea! We don't know if building 40-60 houses in the Lake Tahoe area is a good or a bad thing because we can't be sure who is willing to pay more for this We presume that this is good for the economy, but don't know if this will impact the environment and all of those other things Maybe the court should have asked what is fair? We can't be sure here because the language of the agreement is pretty flat So then we end up just with the judge's values, and this judge clearly values the quiet, serene family resort values with no gambling over big development So this is a good way of showing how values are imported into the language of the deal because the deal could go either way

So, Kelo v. City of New London

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas." The city purchased property and seeks to enforce eminent domain to acquire the remaining parcels from unwilling owners. The City did not plan to open the condemned land to the general public, nor were the private lessees of the land required to operate like common carriers. The question is whether the government can exercise this power to take the land at all? What does the majority say about Berman and Midkiff The property in Berman was not blighted. It was a department store and wasn't blighted, so distinguishing it on the grounds in this case that they are taking non blighted property doesn't quite work Quote from Berman: "It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Notice that this is the same language as Euclid and Belle Terre So we have these cases already, and following those cases the doctrine holds that what public use is is actually public purpose, which looks a little bit like rational purpose This is economics legislation (zoning) Citing to Berman, Midkiff, and Monsanto (which interprets the federal pesticide act as a takings but says it generates a public good) It is not clear what from A to B means either in terms of the majority or the dissent They all agree you have to have some good reason to grab land from private party A and give it to private party B (some kind of a public problem and not a private problem), but they don't agree on what constitutes this other kind of work Question here: Is New London trying its best to help the public good? The answer is yes! How would we know that this was corrupt? What evidence would we show? The order matters: did Pfizer come with this deal or not Did Pfizer bribe or donate the counselors But no. In this case they did elaborate plans, they did studies, they did lots of things to see if this would be beneficial And importantly, the money is mainly coming from the state to try to rejuvenate a declining and fiscally distressed city with high levels of poverty If you are on the city counsel and the state comes to you and says we want to revitalize your city and give you $10mil but you have to give us a big plot of land to rejuvenate the place (a land assembly) in order to bring you these new jobs, you would vote yes on this absolutely. No one would vote no, of course we want the 10mil and we will do whatever you need us to do, and we will pay for the land that we need to take Now, you go to Kelo and you say I will give you FMV, I will give you FMV plus 20%, I will give you 2x FMV, and so on until she says yes If she said yes to a billion dollars we would call her a holdout: I am going to charge you the whole amount of the value of the entitlement Why is eminent domain used in railroad construction? It allows us to assemble land in places where you might have a holdout problem Railroads might be able to go on the local market and buy land But because there are often holdouts, and because the government is trying to create public goods, we allow eminent domain to come in and give that power to the government so that they can force a sale at a fair market price as opposed to a sale at an extorted price In this case, we are forcing a sale because we need the whole parcel of land and don't want to be building around her if she won't sell either except at a very high price or at all because of idiosyncratic value ***We do not have a property right vis a vie the government. They are entitled to force us to sell almost all the time*** It turns out the government also gives the power of eminent domain to some private parties like railroads and mills, and this is the debate between Thomas and the majority You can have anything on the spectrum up to bare taking from A and giving to B Or you could be down here below Berman, but the only person we have there is Thomas. He definitely includes open/used by the public, unclear if he includes owned by the public (like a military base) or private owned but used by the public (like a common carrier). The only one that is clear is the very left most category. (10)The question is what that would look like on restrictions to eminent domain? What are the reasons to restrict eminent domain, and what are the reasons not to restrict it?

Tompkins v. Jackson

Parties starting living together in 1995 and had kid in 96, Π says that after kid was born Δ said that when he "makes it big" he would take care of her for the rest of her life and in response Π says she would support him Π basically takes care of him financially and everything from 1997-2000 2003 they get their own apartment and life there for 4 yars

Watts v. Watts

Sue Ann Evan Watts (Plaintiff) and James Watts (Defendant) began living together in a marriage-like relationship. Plaintiff provided childcare and homemaking services. Eventually, she worked part time at his office. After twelve years together, she moved from their home and ended their relationship. Defendant barred her from returning to work. Plaintiff brings action for her share of the assets. Asks and answers the question: if you are not legally married but cohabiting together in a quasi-marital state, what happens to you and your property upon separation? In cohabitation cases, courts take kind of an opposite approach than they take to marital property: Marriage allows some contractual freedom in that it does allow you to create and execute a prenup, but it doesn't give you full contractual freedom in like a contract-term checklist At the extreme freedom of contracting end, the court would enforce contracts for meretricious relationships (contracts for sexual relations) and would enforce those Cohabitation cases are right in the middle of these two. They possess some features of marital values, but the court's decisions are animated by a worry about promoting meretricious relationships between the parties What kind of contract claims does the "wife" bring? Breach of contract Court here holds that "public policy does not necessarily preclude an unmarried cohabitant from asserting a contract claim against the other part to cohabitation so log as the claim exists independently of the sexual relationship and is supported by separate consideration" and finds that the plaintiff here has pleaded sufficient facts to establish such a claim for contract damages p. 719 They limit this holding o avoid enforcing meretricious contracts Unjust enrichment Plaintiff must establish (1) a benefit conferred on the defendant by her, (2) appreciation or knowledge of the benefit by the defendant, (3) acceptance or retention of the benefit by the defendant under circumstances in which it would be inequitable for him to retain it without compensating her p. 720 Court similarly finds here that the facts are sufficient to sustain an unjust enrichment claim, again noting that this is separate from the sexual relationship Remedy under unjust enrichment could include a constructive trust Partition This is the same doctrine that we see with tenancy in common: it is a remedy under common law and statue that provides real property be divided evenly amongst a partnership should one choose to exit the tenancy in common agreement p. 721 What this really is is just divorce absent marriage Court likewise finds here plating has state sufficient facts to establish a claim What kind of relief the "wife" here ultimately receives will be based on which contract theory the lower court ultimately accepts, which we don't have here (p. 717) What happened? Sue Ann Evan Watts (Plaintiff) and James Watts (Defendant) began living together in a marriage-like relationship. They held themselves out as husband and wife. Plaintiff assumed Defendant's surname, and so did the two children they had together. Plaintiff was on Defendant's insurance policy. Plaintiff provided childcare and homemaking services. Eventually, she worked part time at his office. After twelve years together, she moved from their home and ended their relationship. Defendant barred her from returning to work. Plaintiff asserts that her contributions increased the business and personal wealth of the couple. She asserts that they had a contract to share equally the property accumulated during their relationship and the Defendant breached it when he refused to share equally with her the wealth accumulated through their joint efforts. Asks and answers the question: if you are not legally married but cohabiting together in a quasi-marital state, what happens to you and your property upon separation? In cohabitation cases, courts take kind of an opposite approach than they take to marital property: Marriage allows some contractual freedom in that it does allow you to create and execute a prenup, but it doesn't give you full contractual freedom in like a contract-term checklist At the extreme freedom of contracting end, the court would enforce contracts for meretricious relationships (contracts for sexual relations) and would enforce those Cohabitation cases are right in the middle of these two. They possess some features of marital values, but the court's decisions are animated by a worry about promoting meretricious relationships between the parties What kind of contract claims does the "wife" bring? Breach of contract The contract here could be written, oral, or implied Court here holds that "public policy does not necessarily preclude an unmarried cohabitant from asserting a contract claim against the other part to cohabitation so log as the claim exists independently of the sexual relationship and is supported by separate consideration" and finds that the plaintiff here has pleaded sufficient facts to establish such a claim for contract damages p. 719 Notice the way that they limit this holding. This is precisely to avoid enforcing meretricious contracts Unjust enrichment Addressed in Part V of the opinion on p. 720 Here, the court says plaintiff must establish (1) a benefit conferred on the defendant by her, (2) appreciation or knowledge of the benefit by the defendant, (3) acceptance or retention of the benefit by the defendant under circumstances in which it would be inequitable for him to retain it without compensating her Court similarly finds here that the facts are sufficient to sustain an unjust enrichment claim, again noting that this is separate from the sexual relationship Remedy under unjust enrichment could include a constructive trust Partition Addressed in Part VI of the opinion p. 721 This is the same doctrine that we see with tenancy in common: it is a remedy under common law and statue that provides real property be divided evenly amongst a partnership should one choose to exist the tenancy in common agreement What this really is is just divorce absent marriage Court likewise finds here plating has state sufficient facts to establish a claim What kind of relief the "wife" here ultimately receives will be based on which contract theory the lower court ultimately accepts, which we don't have here

Boomer v. Atlantic Cement Co.

The Defendant, Atlantic Cement Co., operated a large cement plant near Albany. The Plaintiffs, neighboring property owners, filed suit seeking an injunction and damages for injury to property from smoke, dirt and vibrations from the plant. Both lower courts ruled that the Defendant maintained a nuisance, but found that the value of the Defendant's operation outweighed the consequences of the injunction. Let's imagine this case in a hypothetical Coasian world for a minute: If entitlement to the houses: the houses will demand some amount that is greater than or equal to the amount of damages they received but less than or equal to the profit that the cement company receives from operation, and the cement company will buy at that price If entitlement to the cement company: the houses will try to buy the entitlement from them up to the amount value amount of their damages, but the cement company won't sell for that because their profits would dwarf that offer Either way, we get a socially efficient outcome because the most numerically valuable activity continues The court here finds that a nuisance has occurred based on the traditional methods of analysis The supposed innovation here though is that rather than granting an injunction, the court grants a damages award See chart: bottom left box (box 3) Once you're in this box, according to Coase, you can bargain to different alternatives The Boomer court wants the cement activity to continue going on, which is why they don't grant the injunction. But they also recognize that it is not fair to force the landowners to live with pollution, so they don't grant the full right to the cement company either. In theory, the plaintiffs would just sell the entitlement with option 1 But, the court here doesn't do this because they want to avoid issues with transaction costs (like the cement company taking advantage of information asymmetries, or like the house owners over-exploiting the cement company in order for them to continue to operate, etc.) The court therefore sets the damages themselves, even though going with box 1 would have given a similar result We don't actually think the court is that sophisticated in making this decision here, but this is the theory that could justify it The dissent says that this is not what we do, we grant injunctive relief only "It is the same as saying to the cement company, you may do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, hereby continuing air pollution of an area without abatement." p. 361 Schragger likes box one with a clear injunction in this case :) (p. 358) What happened? The Defendant, Atlantic Cement Co., operated a large cement plant near Albany. The Plaintiffs, neighboring property owners, filed suit seeking an injunction and damages for injury to property from smoke, dirt and vibrations from the plant. Both lower courts ruled that the Defendant maintained a nuisance, but found that the value of the Defendant's operation outweighed the consequences of the injunction. Plaintiffs appealed. Let's imagine this case in a hypothetical Coasian world for a minute: Here, if the court grants the entitlement to the houses, the houses will demand some amount that is greater than or equal to the amount of damages they received but less than or equal to the profit that the cement company receives from operation, and the cement company will buy at that price If the court grants the entitlement to the cement company, then the houses will try to buy the entitlement from them up to the amount value amount of their damages, but the cement company won't sell for that because their profits would dwarf that offer Either way, we get a socially efficient outcome because the most numerically valuable activity continues But in the real world (in both cases), we also have transaction costs that often impeded negotiations (for example, litigation costs blocking a good trade). And, a jury is never going to be able to engage in this analysis The court here finds that a nuisance has occurred based on the traditional methods of analysis The supposed innovation here though is that rather than granting an injunction, the court grants a damages award See chart: bottom left box (box 3) Once you're in this box, according to Coase, you can bargain to different alternatives The Boomer court wants the cement activity to continue going on, which is why they don't grant the injunction. But they also recognize that it is not fair to force the landowners to live with pollution, so they don't grant the full right to the cement company either. In theory, the plaintiffs would just sell the entitlement with option 1 But, the court here doesn't do this because they want to avoid issues with transaction costs (like the cement company taking advantage of information asymmetries, or like the house owners over-exploiting the cement company in order for them to continue to operate, etc.) The court therefore sets the damages themselves, even though going with box 1 would have given a similar result We don't actually think the court is that sophisticated in making this decision here, but this is the theory that could justify it The dissent says that this is not what we do, we grant injunctive relief only "It is the same as saying to the cement company, you may do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, hereby continuing air pollution of an area without abatement." p. 361 Schragger likes box one with a clear injunction in this case :) And note that settlement of these kinds of cases is always in the shadows

McDonnell Douglas Corp v. Green

Title VII employment discrimination taste that gives three-part burden of proof test that's typically used with FHA (1) Π needs to bring proof of a prima facie case of discrimination (2) if Π proves prima facie case burden shifts to Δ to produce evidence that the refusal to rent or negotiate was for legit non-racial reasons (3) Once Δs evidence shows non-discriminatory reasons burden shifts back to Π to show that reasons were pretextual

Jeremy Waldron: A right to be somewhere?

"Everything has to be done somewhere. No one is free to perform some action unless there is somewhere he is free to perform it." Whether or not the homeless have a right to be anywhere, then, becomes a very critical question: One way of describing a person who is homeless is by saying there is no place governed by a private property rule where he is allowed to be The homeless then are relegated to the public areas: parks, streets, under bridges, some public shelters (but those are overcrowded, and in the daytime their only option is often to roam However, today America is more and more regulating what can be done in those public spaces, restricting activities like sleeping and and urinating But if a homeless person cannot urinate in public, and they cannot legally be anywhere private and do the same, then the assumption is that the homeless have no right to urinate at all because they have nowhere to do it This is a huge problem in the United States in particular This is a classical rights justification for restricting restrictions on public places: all kinds of rights are parasitic on property rights, so if we allow restrictions in public places that disparately impact the homeless, it might end with those people having no rights at all

Desnick v. ABC

(Downloaded document) What happened? A producer for PrimeTime Live, a television program on ABC (Defendant) called Dr. Desnick, the owner of Desnick Eye Center (Plaintiff) and asked permission to shoot footage for an upcoming program. The program featured plaintiff ophthalmic clinic and ophthalmologists. Unknown to Plaintiff, the segment would include undercover surveillance by test patients. Defendant dispatched people with hidden cameras to Defendant's offices to pose as patients and request eye exams. Defendant took the recordings of the patient exams and used them as part of the program, which aired nationally. Upon airing of the program, Desnick brought suit for trespass and defamation among other torts Rule for trespass: "to enter upon another's land without consent" p. 10 As applied here: Was there consent? Yes BUT, consent procured by fraud is not actually consent And here, there was fraud in the procurement. Desnick thus claims there was a trespass Posner (judge writing the opinion here on appeal) is puzzled: The following are trespass: A person pretending to be a meter reader just to come in and be a busy body Stealing trade secrets under false pretenses Misrepresenting your STD status Doctors promising medical treatment but instead forcing sexual contact The following are not trespass: Housing discrimination testers using false pretenses to enter Restaurant critics posing as average customers Window shopping with no intention of buying anything Promising to pay for sex and then paying with a counterfeit bill Seduction: promising love in exchange for sex and not following through The "false dinner friend" All of these involve fraud, regardless of category. What is the distinguishing principle then? "It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person's property." p. 11 This is a standard-type thing: "The lines are not bright—they are not even inevitable." p. 11 Some concept of social norms is at play here, in addition to a privacy component, some bodily autonomy principles, and for sure a concept of social welfare at work So: consent obtained by fraud is not a trespass if the social benefits of the invasion outweigh the social costs and the use of property is non-disruptive and in line with standard use

Asbury v. Brougham

(p. 1032) What happened? Rosalyn Asbury (Plaintiff), a black woman, went to an apartment complex and tried to rent an apartment. The manager of Broughham Estates (Defendant) told her there were no vacancies and that she did not keep a waiting list. Defendant would not let her fill out an application or view model units, but suggested that she look at a complex that housed mostly black families. Plaintiff's income was sufficient to pay rent on Defendant's apartment. When white customers inquired about units, they were told that units were available. Defendant rented units to whites after Plaintiff was told nothing was available. Plaintiff brought suit under the Act, which prohibits discrimination on the basis of race. Straight up application of the FHA What we really want to understand is the burden of proof shifting here The McDonnell Douglas Burden Shifting Doctrine Principles come from a title 7 case which looks a lot like the FHA This is interpretation of a statute title 7 that they are now applying to a housing statute. But the text doesn't say anything about burden shifting Here, we just have language "because of." How do we operationalize because of when we come to court? What is the burden shifting framework here? Under McDonnell, three things happen: Plaintiff must come forward with PF case of discrimination D must then produce evidence that the refusal to rent or negotiate for a rental was motivated by legitimate, non-racial considerations Does this mean we have to prove the internal psychological state of the defendant, or does it mean something else? P must show that the proffered reasons were pretextual, or a lie or not quite accurate How do we make the PF case? 4 things: Plaintiff must prove minority She applied for and was qualified to rent an apartment She was denied the opportunity The housing opportunity remained available Plaintiff in this case proves all 4 things Now defendant must respond. What does Brougham say? Children can't be in the apartments, and other excuses and reasons etc. on 1034 into 1035 Asbury then shows that these are pretextual by producing evidence that these restrictions had not applied to other people. She got these through the computer data sheets, which she would have gotten in discovery after discovering a 12b6 motion. And that is huge in this case The big thing that she has that most tenants and home buyers don't have is her white sister in law inquiring about an apartment the next day (a tester, Linda Robinson) This should look familiar like from our doctors office case where they filmed. She is not a trespasser! We don't know why, we just know that she wouldn't be even though this is consent procured by fraud And then she hires a lawyer to pursue this case, which is expensive, and it makes it all the way up to the tenth circuit, which is really expensive This should be an open and shut case, but it doesn't seem to be since it gets so far up on appeal Defendant has one good argument, and it is important to highlight this because the question of intentional discrimination asks us what actually motivates the discrimination There is a large minority population already living at the place, which he argues conclusively rebuts the claim of racial discrimination. He says that he can't be discriminating based on race because other people of the same minority population live here and I haven't turned them away The court answers this by saying that this evidence is not dispositive. It's good evidence, but it doesn't tell the whole story, and also because this is a sufficiency of the evidence claim, we give some credence to the decision of the jury and there was enough evidence for the jury to find otherwise Could we tell a story that this is discrimination even despite the high population of black people here? You might tell a story where they are concerned about crossing a threshold where too many black people live there that white tenants will then flee if it gets too integrated This case is really a disparate treatment case. What is a disparate impact case? Facially neutral policy that results in a disparate impact on minority groups, like putting the low income housing in a certain neighborhood

Village of Belle Terre v. Boraas

(p. 1132) The village of Belle Terre (Plaintiff) restricts land use to single family dwellings, excluding lodging houses, boarding houses, fraternity houses, or multiple dwelling houses. 'Family' in the ordinance means those related by blood, adoption, or marriage, living and cooking together as a single unit. Two people living together but not related by blood, adoption or marriage will constitute a family. Six college students leased a house, and were not a family under the ordinance. They seek to declare the ordinance unconstitutional. SCOTUS case. Again, under bifurcated judicial review this should be rational basis review. This is zoning, it is a restriction to related individuals This is public goods zoning. The house is the house and will generate whatever revenue it does, but it is more public goods because it is trying to control the characteristics of the local goods. They don't like these people because they are students/hippies/hippie students (that is what all of the language at the bottom of 1132 is trying to say) Famous ¶ reflecting the values from Euclid: "A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and blessings of quiet seclusion and clean air make the area a sanctuary for people So, allowed for exclusionary zoning of college students in this case: it justifies a regime NOT that is excluding a factory, but one that is excluding a type of people—Students! Marshall dissents for obvious reasons: this is both over and under inclusive, but he needs a right or classification he can work with. He uses kind of both things: essentially he says we need strict scrutiny because this brings in the right of association and the right to privacy. It needs to be narrowly tailored and ought not to involve the private associational rights of these students to live together Put this together in your head with the roommate case: they invoke a similar associational right and both here are roommate cases Only one vote in dissent though

Moore v. City of East Cleveland

(p. 1135) Appellant, Mrs. Inez Moore, lived in an East Cleveland home with her son, her son and her two grandsons. The two grandsons were first cousins rather than brothers, with one of the grandsons moving in with his appellant after his mother's death. Appellant received notice that she was in violation of a Cleveland criminal statute that limits occupants of a dwelling to members of a single family. Appellant's family did not meet the definition required for a single family, and she was convicted and sentenced to 5 days in jail and a $25 fine. This shifts now and most of the judges now move over to the dissents side. They are concerned What is the only distinction here? The ordinance here is structured so that not only now are unrelated individuals not a family, but only families and only families that include certain kinds of relations Why would you write an ordinance like this? There are a couple of reasons First, everyone started to show up and say we are related and just claim that they are a family! The hippies did this, so this is anti-hippie And it may not specifically be but it may have a disparate impact on African American and other minority families (Brennan and Marshall both suggest that) 1137/1138: they put on the table that it is quite apparent that there are white suburbs and black cities (starred 1137) Powell comes over and Blackmun come over because they are concerned about this intimate association problem, which is the family and the fundamental right to live with your family members Again, compare to roommate if you want to What is the difference between Belle Terre and Moore? The fact that here now we are impinging into familial relations even by blood White in dissent says idk this looks like rational basis to me. That is, related persons don't have any constitutional rights. This is just economic legislation and it should be valid Note again here that this is public goods zoning of a certain kind doing the work here because we don't want too many of a type of people here (10)Belle Terre is still good law, and there are relational limits all over the country still today limiting both the number and types of people that can be within the home. Moore just limits the regulations in defining the family from becoming too strict Do they elevate the level of scrutiny here or do they just say this fails rational basis? We are unsure, but it sounds a little substantive due process-y Certainly not applying rational basis, but we are not entirely sure what they are using

Pierson V. Post

Post and his dogs hunted, chased and pursued a fox along the beach. Pierson was aware of the chase, and he killed the fox and carried it off. The court here in the majority sided with Pierson: Rule of capture (or occupancy): must kill or mortally would the animal to own the animal (or otherwise mortal wounding + intention + control) Justifications: social welfare/utility, possession, potentially distributive justice The dissent here sides with Post and adopts a standard: Customs/norms of what hunters think should rule as our guide: etiquette is the standard and we should look to whether there is a "reasonable prospect of taking" of Post taking the fox Justifications: labor, settled expectations, potentially social welfare (if rewarding labor rewards hunting)

Pierson v. Post

(p. 136) What happened? Post and his dogs hunted, chased and pursued a fox along the beach. Pierson was aware of the chase, and he killed the fox and carried it off. Post claimed a legal right to possession of the animal, and the lower court agreed with him. Pierson appealed What are the arguments? Post says pursuit of the animal + intent to kill and possess should be enough Relied in part on a labor theory: The pursuit of the fox was sufficient to establish ownership over it (labor) Hounds trained to hunt + wearing a little red jacket (appropriate clothing for hunting) Pierson says that because he killed the fox, he owned it Relied on the law of capture/theory of possession: The catching and killing of the fox gave him ownership over it (possession) The court here in the majority sided with Pierson: Rule of capture (or occupancy): must kill or mortally would the animal to own the animal (or otherwise mortal wounding + intention + control) Why? Don't want to invite litigation, and this rule helps limit litigation Pursuit without moral wounding isn't certain that you will ever get to possession, and then they would grant a property right over something you could never own Ducks case (Keeble v. Hickeringill) is distinguishable Hunter sets up a decoy pond for ducks and thus the ducks captured in his pond are "so in his possession" Duck's argument supports the Locke theory that labor establishes property/possession. The hunter built and sent a lot of labor on the pond, thus should be in possession of the ducks hunted in his pond. Post is making a similar argument that he put a lot of labor (hounds + attire) into catching the fox But the majority says that here the action was for malicious hindering, and also the ducks were in his decoy pond and so already in his possession The dissent here sides with Post and adopts a standard: Customs/norms of what hunters think should rule as our guide: etiquette is the standard Standard = "reasonable prospect of taking" of Post taking the fox Standard would be decided by referring to sportsman instead of scholars to figure out what is reasonable. Why? Encourages/rewards the useful investment of labor in some pursuit Recognizes that labor in kind Recognizes the settled expectations/social norms of the hunting community The standard allows us to be more judicious in our ruling Which rule is actually better for getting rid of foxes? Probably capture! But these other justifications play a role as well, and so we should think about how the justifications play out

Popov v. Hayashi

(p. 142) What happened? Popov and Hayashi were spectators at a baseball game in San Francisco. A ball was hit by baseball start Barry Bonds in their direction. Initially, Popov caught the ball but due to crowding and shoving by the people surrounding him, he somehow lost balance and lost grip of the ball. Hayashi, who was not part of the rowdiness picked up the ball that had fallen and kept it for himself. Popov tried to recover the ball from Hayashi and this resulted in a struggle over who the rightful owner was. Popov filed an action for conversion. Question here is whether or not Popov had a legal right to possess the ball Popov argues yes, he does. He put in the work to catch the ball, and it wasn't his fault that he was pushed around and trampled. Fairness dictates you give the ball back Hayashi argues no, he does not. He has possession of the ball and did not obtain possession unlawfully, and he should not be penalized because someone thought the ball would be theirs Court here decides that BOTH Popov and Hayashi have an equal claim to the ball, and thus they order the ball to be sold and the proceeds split between them (equitable division) The rule here would be rule of capture: whoever takes the ball has the ownership interest in it Here, that applies to Hayashi. He obtained the ball lawfully and now has it in his possession However, a standard also applies. The court creates the doctrine of a pre-possessory interest: "where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion." p. 144 Here, Popov had a pre-possessory interest in the ball. He caught it, but because he was injured by the assault and battery of the crowd members, he could not take full possession and we do not know if he would have been able to take full possession ever. The court now has two interests to weigh: both Hayashi and Popov seem to have a legitimate claim to the ball, and it doesn't seem fair to punish either at the expense of another In weighing the interests here, the court finds that Popov's pre-possessory interest was equal to half of the value of the ball compared to Hayashi's claim to it Thus, the court remedies this with equitable division: when there are two claims to an object which are equally sold, the object should be split so that each party retains half the value of that object. Here, that is achieved by selling the ball at auction and giving each owner half of the proceeds from the sale

Eliff v. Texon Drilling Co.

(p. 146) What happened? Mabel and Frank Elliff (Petitioners) own a parcel of land upon a producing well. They had a royalty interest in oil and gas leases on their land. Clara Driscoll owned the land adjoining theirs. Texon Drilling Co. (Respondents) were drilling on Driscoll's property, near Petitioners land. Driscoll/Texon used the wrong mud here, so during drilling, a well blew out and cratered. This explosion caused wells on Plaintiffs land to blow out. The first blow out also caused large quantities of gas and oil to drain from under Petitioner's land and escape into the air. Under TX law, Eliff owns the oil under her land if it is undisturbed ("In our state the landowner is regarded as having absolute titler in severalty to the oil and gas in place beneath the land") UNLESS under the law of capture it moves and is harvested by someone else ("the only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations.") TX ownership requires both absolute ownership and capture, which conflicts with one another in these circumstances Absolute ownership can't be true because the oil is migrating: capturing through wells what is on someone else's land isn't stealing like with other goods You only have a pre-possessory interest when you haven't pulled it out yet The court gets around this with the idea off correlative rights to the common pool of resources: "Each landowner should be afforded the opportunity to produce his fair share of the recoverable oil and gas beneath his land, which is but another way of recognizing the existence of correlative rights between the various landowners over a common reservoir of oil or gas." p. 149 So here, Texon is right: Eliff never exercised her right to capture The rule then is seemingly unfair! So the court has to remedy this too and now they give a standard: You must act reasonably with regard to the value of the common pool of oil. Negligence will be grounds for awarding compensation back to the owner that did not capture Is this the right rule? Social welfare: if we want the oil out, we want the capture rule. But this may invite lawlessness. Additionally, we don't want the oil wasted, so this does seem like the right rule Labor: unsure where this points; likely to the law of capture because it rewards those who are using the resources rather than sitting on it idly Possession: Texon here had possession, and this would tell us that the rule of capture should have been adopted and the court got it right Rights: unclear if this applies here or not because there really is no idiosyncratic value to take into consideration Distributive justice: not really applicable here because there are no richer or poorer parties relevant to this

Qualitex v. Jacobson Products Co.

(p. 182) What happened? Qualitex Company (Petitioner) uses a special shade of green-gold for press pads that it sells to dry cleaning firms. Jacobson Products (Respondent) began to use the same color. Petitioner registered the color as a trademark and then added a trademark infringement count to an unfair competition claim in a lawsuit it had already filed against Petitioner for use of the color. The Lanham Act gives a seller or producer the exclusive right to register a trademark and to prevent competitors from using that trademark. Breyer writes the majority opinion here in what is a very undesirable trademark case to have to take Essentially, Qualitex is mad that someone else created dry cleaning pads that are the same color as the ones they make The question the court grapples with here is can you trademark a color? The court answers hell yea you can. A color is really no different than any of the things the courts have said you can trademark in the past "The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca-Cola Bottle), a particular sound (of NBC's three chimes), and even a particular scent (of plumeria blossoms on sewing thread). If a shape, a sound, and a fragrance can act as symbols why one might ask, can a color not do the same?" p. 182 "We do not believe, however, that color, in this respect, is special. Courts traditionally decide quite difficult questions about whether two words or phrases or symbols are sufficiently similar, in context, to confuse buyers." p. 184 Court rejects both arguments made by Jacobsen: "Shade confusion": the idea that the trademarking of colors will lead to uncertainty and unresolvable confusion and disputes about what shades of a color a competitor may lawfully use "Color scarcity": the idea that colors are limited in supply and thus should not be subject to trademark law So, is the use of a competitor's colors stealing? The court says yes We think maybe consumers are being misled to buy competitor products and the consumer confusion argument holds up here. One of two things happens if that is the case: A consumer buys the competitor product, perhaps for a cheaper price, and finds out that the product is comparable and stops buying your rich name-brand product A consumer buys the competitor product, perhaps for a cheaper price, and makes sure to always buy your product instead. Or maybe is so dissuaded that they don't buy anything like your product We certainly think that the repetitional effects argument is likely doing more of the work here Why give you trademark rights to non-functional features at all? Possession is the predominant policy justification Labor might also play in here: if someone else is free riding off of the good work that you did, we want to shut that down Similarly, under social welfare: we want people to be incentivized to build their own brands and want our law to encourage and reward that kind of investment But remember, copying induces competition, which we also think of as good for social welfare because it lowers prices overall

Suntrust Bank v. Houghton Mifflin Co.

(p. 195) What happened? Houghton Mifflin has rights to a book called The Wind Done Gone (TWDG), a critique of Gone with the Wind's (GWTW) depiction of slavery and Civil-War era American South. Gone with the Wind is one of the worlds best selling books, and SunTrust Bank is the trustee of the Michelle Trust that holds the copyrights to that book. The author of TWDG, Alice Randall, in her critique of the book used several characters, plots, and major scenes in the first half of her book. SunTrust first asked Houghton to refrain from publication and they refused. So SunTrust filed a copyright action claiming the book violated the Lanham act and also sought a preliminary injunction to stop the book from publication. The court here says that this is not stealing, but Schragger says this is full blown stealing The new book doesn't get written or exist or get money for it's creation at all if GWTW doesn't exist This is generally true of all parodies, you can't make money on the parody unless the original came along first So this is 100% free riding The court initially looks towards the history of the copyright Three traditional goals of the copyright statute in history: To promote learning by guarding against censorship To ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired To encourage the creation of original works Note the history here indicates that there is an idea of a property right in your originally created works, but limited. The idea was tp give you ownership of your work, but only limited ownership over the copyright without censorship to prevent monopolies Additionally, the first amendment does not protect copying, so the two are crafted to work in tandem with one another and not overlap Then, they say that suntrust is entitled to relief only if they can show four things: A substantial likelihood of success on the merits A substantial threat of irreparable injury if the injunction were not issued The threatened injury outweighs the harm the injunction may cause the defendant The injunction would not do a disservice to the public interest Ultimately, the court finds that the PF elements of copyright were met, but that this work fell under the fair use exception: Four factors that may establish a fair use: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes the nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole This is where the court has to go sentence by sentence and compare the two texts Do we really want courts to have to do this? It looks a little hard to administer fairly, but copyright law tells us we have to. the effect of the use upon the potential market for or value of the copyrighted work The court says they are not that worried about this because the two works are not really substitutes for one another The players here are the publisher of the new parody and the bank. The original writer us dead. This means that the incentive to produce creative work on her end is completely null. So how long do you need a monopoly to incentivize you to create GWTW or other creative works? Might be that the publishers have to protect their one or two heavy hitters and recoup their investment in that Part of the question is whether the owners are just extending rights on an old work and not actually creating new things Business model supports protection for the long term big hitters But individual creators often do things for no incentive at all, which works against having a long term under the psychology of incentives They do like it post creation though, even though they don't need it pre creation Another part of this question might be whether or not we could incentivize artists other ways? Sure, we could fund artists directly instead of through their works The chance of payout on copyright are really low anyways, and copyright actually ends up doing almost no work monetarily Ultimately, what this case comes down to is courts having to make decisions under conditions of uncertainty and prioritizing certain value judgements in the moment

Uston v. Resorts International Hotel

(p. 25) What happened? Uston has a card counting strategy that increases his odds of winning at blackjack. The Resort learned of his strategy and excluded him from playing because of it. The Casino Control Commission upheld that decision on the ground that appellant had a common law right to exclude from its premises anyone it chose, so long as to do so was not in violation of the law. Uston contends that there is no common law or statutory right to exclude him because of his blackjack strategy What is this case really about? Here, the sensible interest for Uston is the right to enter and count cards, which is not a guaranteed right. The court however spends all of this time on it in this decision because they want to take the opportunity to talk about what common law rule they want to adopt The court decides here on a principle of a right to reasonable access, replacing the common law right to exclude Where did the right to exclude come from? It seems to have racist origins: the common law switched its rule from reasonable access to a right to exclude right at the same time when the black/white distinction began to take hold across America "The denial of freedom of reasonable access in some states following the passage of the fourteenth amendment, and the creation of a common law freedom to arbitrarily exclude following invalidation of segregation statutes, suggest that the current majority rule may have had less than dignified origins." p. 26 footnote 14 In light of this, the court decides to go back to a rule of reasonable access and cites a bunch of precedent/reasons for doing so:

Community Feed Store, Inc. v. Northeastern Culvert Corp

(p. 315) What happened? This case involves a dispute over a gravel lot that is between two businesses, Community Feed Store and Northeastern Culvert. The lot is partly owned by each business. Feed Store uses the lot as a turnaround area for vehicles coming to Feed Store's building to pick up or drop off feed. Feed Store and its predecessors used the land for this purpose from 1929 until Northeastern found out that it owned part of the lot and built a barrier in 1984. Feed Store brought an action seeking a declaratory judgment that it had a prescriptive easement over the portion of the gravel owned by Northeastern. Northeastern issued a counterclaim for ejectment of Feed Store. The statutory period for a prescriptive easement in Vermont is 15 years. What is the issue here? Whether the plaintiff is entitled to a prescriptive easement What are the sub-issues here? Whether the plaintiffs failed to prove what, if any, land of the defendants was used by them Whether their land use was with the fee owner's permission The facts here make it look like the Ds are trying to coerce the Ps to pay them for a value they didn't know that they had for a very long time On the first issue, the court says this is just silly. This is a turnabout and the plaintiffs got this basically right and that is good enough "it is clear that when a prescriptive easement is claimed, the extent of the user must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. We hold that where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue." p. 317 On the second issue, the court says that the plaintiffs prevail here as well Silence here is presumed to be non permissive This is VERY important "The general rule is that open and notorious use will be presumed to be adverse." p. 318 Then there is this tricky idea of acquiescence slipped in here "The elements necessary to prove a prescriptive easement are open, notorious, hostile, and continuous over a fifteen year period in which the fee owner has acquiesced." p. 318 The court really ignores this issue mostly The idea is that the owner may have needed to know if fact, or they may have needed to try to stop it, but we don't know really what this means or what role it plays in this case Why go for an easement here and not for AP? They don't have exclusive use of the strip, and with a prescriptive easement, courts often drop the exclusivity requirement

Page County Appliance Center v. Honeywell, Inc.

(p. 346) What happened? We have a TV store, County Appliance Center (AC), here in 1984 in Shenandoah, Iowa that sells TVs which carry three channels Originally, they had no problems with their TVs. But one day, when AC turns those TVs on, two of the three channels in the store aren't displaying properly AC comes to discover that this issue is due to the fact that the travel agency next door put in a central computer, which was leaking radiation so as to stop the TVs from working Repairs were made to the computer, and though the reception improved, it was not returned to its condition prior to this incident. AC sues over the fact that the radiation is affecting their ability to sell televisions, bringing a nuisance claim How do we figure out if this is a nuisance that should be remedied? First, AC figures out radiation is causing the display issues They then say to Central Travel Agency hey, you need to fix this When travel agency doesn't, they bring this claim If you're the plaintiff TV store here, what do you claim the jury instructions should say? If the travel agency affects my business in any way, you should find a nuisance If you are the judge, you will want to add in the terms of reasonableness and substantialness to this statement If you are the travel agency, what do you want the jury instruction to say? You want the jury instruction to include a charge for the jury to consider whether AC is engaging in a hypersensitive use Also, you want it to say that the radiation coming out from the travel agency is fine and not harmful generally (non-negligent design) Although there is a problem here with the fact that the radiation leak was fixable And, you want it to say that unreasonable should mean that operating the computer is unlawful, not within normal operations, and contrary to the cost benefit analysis (a jury instruction that says you have to measure this) With this, you would want to quantify the benefits retained by having a computer at the agency: the costs that having a computer saves consumers, and (if allowed) testimony about how their business will suffer if the computer is shut down to they have to move In response to this, AC will say but we will go out of business if this continues! And they will quote the amount of money they are losing So how do we fix this situation as the court? Who do we rule for? Honeywell here is the CCA: they can fix the computer, or make a computer without radiation, or move But if AC is making less than TA is losing based on our quantifications, then maybe we say shit sucks, social welfare says this is the optimal situation Or maybe we want the parties to bargain: we have travel pay TV $500 to compensate them for their lost profits The jury here awards AC damages because the computer was fixed But note that the remedy sought here by AC and the remedy normally granted would be an injunction Let's assume that the TV store loses $500 a month because of this, while travel agency gains $1000 a month with the computer and would gain $500 a month still if we took the computer away. If we want these folks to stop showing up in court, where would we place the entitlement? We would give the entitlement to TV center Want to incentivize the company that has more wiggle room Remember the Coasian view is it doesn't really matter because the parties will bargain with one another anyways to create the best outcome We do care though in either externalities world or fairness/justice world

International News Service v. Associated Press

(p. 4) What happened? One defendant is a field worker for a nonprofit corporation that provided for the health services of migrant farm workers. Another defendant is an attorney for a nonprofit corporation that provides legal advice and representation for these workers. The two defendants went to the farm of the plaintiff to consult with the migrant farm workers there, and the farmer plaintiff confronted them at the entrance. The plaintiff offered to bring both men to his office, but the defendants wanted to see the men in their living quarters outside the supervision of the plaintiff. The plaintiff summoned a state trooper, and the defendants were charged with trespass. Defendants were convicted in municipal court and appealed their conviction on the grounds that they had a right to be there Is this a criminal law case? A property case? A contract case? It is all three! Criminal: action is brought against Shack by the state; he was arrested and convicted in municipal court of trespass Property: the right to exclude, which founds trespass, is a property entitlement Contract: unequal bargaining power in the creation of the migrant farm worker employment arrangement plays a role here NJ is a special state because it interprets property rights as balanced against other important interests Public policy interest here: preserving the rights of migrant farm workers to have access to legal and other services in their living quarters Additionally, there is a first amendment issue here What do the defendants argue? First, defendants argue that there was a violation of their First Amendment rights by not letting them meet with the migrant farm workers Marsh v. Alabama (p. 5) Provides a precedential basis in this case and many others In that case, there was a town that was privately owned by a singular company, and that town kicked out Jehovah's Witnesses. That group challenged their expulsion in court, and the state countered by saying this was private action and thus outside of the scope of the First Amendment The SCOTUS held that this was a First Amendment violation despite the town being privately owned because the place looked and acted like any other public municipality, and the First Amendment was so important that that interest took over in the borderline case Constitutional law challenge Second, defendants argue from the Supremacy Clause Their trespass conviction conflicts with federal statutory law, as both SCOPE and CRLS (their respective nonprofit legal programs) are funded under federal law. Since the federal law overrides local law under the supremacy clause of the constitution, their conviction is unlawful Federal statutory law challenge Third, defendants challenge their conviction as against state statutory law Now, defendants turn to say statutory law to say that state statutory law does not include the right tp bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the statute The court addresses the issue of the case on the third argument only. They avoid both the federal statutory question and the constitutional question because the state law issue settles it, it prevents their decision from being reviewed by the SCOTUS, and because it deals specifically with the rights of migrant farm workers as opposed to the rights of lawyers. Court here says that the migrant farm workers have a right: a right not to be isolated from services or any other provision for their wellbeing. This right overcomes the farmer's right to exclude from his property "And we are mindful of the employer's interest in his own and in his employees' security. Hence he may reasonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. 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." p. 9 Court also considers the contracts challenge made by the plaintiff/state There is presumably a contract for the migrant worker to come work fir the farmer The question is then if the right to receive visitors can be contracted away The court here says no, we don't recognize a right to contract away a group's fundamental dignitary rights

Village of Euclid v. Amber Realty Co.

(p. 424) Appellee challenged the enforcement of a zoning ordinance on the ground that the enforcement would constitute an unconstitutional taking by devaluing his land. Appellee owns sixty-eight acres in the Village of Euclid (Appellant). On November 13, 1922, the Appellant enacted a zoning ordinance, which divided the land in the village into six classes of use districts, three classes of height districts, and four classes of area districts. The uses of Appellee's first six hundred twenty feet of land do not include apartment houses, hotels, churches, schools or other public or semi-public buildings. The use of the next one hundred thirty feet of Appellee's land include all the uses excluded in the first six hundred twenty feet, except that the use of the second one hundred thirty feet excludes industries, theatres, banks and shops. The enforcement of the ordinance is left to the inspectors. Meetings of the Board of Zoning Appeals (BZA) are public and minutes are kept. What are the moves here to get from common law sic utere to single family use zoning? nuisance law and obvious that sic utere is a restriction in your ownership Radice and reasonable margin: we give the legislature deference to provide a reasonable margin between incompatible land uses. They get some latitude and don't need a perfect means end fit Providing this margin can and may require physically separating uses from one another, building on pre-existing height restrictions Finally, we separate even within the categories and between different types of activities by saying that apartments are a "mere parasite" and retard the development of detached houses while taking advantage of the open spaces and attractive surroundings by blocking light and air and depriving children. Essentially, the court claims that apartments and multi-family dwellings come very near to being a nuisance on single family dwellings So: sic utere → nuisance → reasonable margin to avoid nuisance → separation of housing types → single family housing (because apartments are parasitic threats/almost nuisances) So, zoning, which burdens all lands equally, is good law under Euclid as an exercise of the government police power for regulating health and safety

Civil Rights Act

(p. 44-45) There are two relevant for our purposes: Civil Rights Act of 1964, Title II Civil Rights Act of 1866 Basic principle with these is that the right of access cannot be violated or denied on the basis of race, color, religion, or national origin Notice what's missing: gender, sexuality, other protected classes The acts enumerate establishments that count as public accommodations for the purposes of these acts, but we are unsure whether these enumerations are meant to be exhaustive or not Weird constitutional history of the public accommodations requirements The note on p. 47 tells us that prior to the second Civil Rights Act, there was a public accommodations act and SCOTUS struck it down as not complying with the state action requirement. When congress went to repass the statute with the public accommodations requirement in the 1960s, they did so under the commerce clause power, despite the fact that this would have made much more sense under the equal protection clause of the 14th amendment They did this precisely to avoid this tricky history with the state action requirement

Southern Burlington County NAACP v. Township of Mount Laurel

(p. 463) Attached townhouses, mobile homes, and apartments are not allowed anywhere in the Defendant town under the zoning ordinance. All four residential zones provided in the town's zoning ordinance, only permit one house per lot of single family, detached dwellings. The Court determined that the restriction to single family dwellings realistically only provides housing options for those with "at least middle income." The record substantiated that Defendant had an affirmatively and historically developed a policy to control development density and attract selective growth. The finances had been expended solely for the benefit of upper and middle income people. Town doesn't hide the fact that we are doing this. They are fiscally zoning, which places around the country have The court however characterizes this as zoning so only richer people can live there This is farmland for most of the 20th century. There is traditionally a heavy rural black community living here that is threatened by these ordinances, but note that this is not deiced on the basis of race/equal protection claims What is the protected legitimate justification for the ordinance? Elevates the property values Protects the base revenue So this ordinance has legitimate interests despite the fact that everyone knows it has facial implications What other effects of exclusionary zoning are troubling to the court? housing is a fundamental need (right?) Fair shares/equal opportunity to live in a particular jurisdiction or municipality Need for affordable housing for every one at every income scale (supply problem) Spatial mismatch: people aren't living where they weren't and can't get jobs around where they work Pushes people into lesser neighborhoods (Camden here) leading to overcrowding and poor housing conditions elsewhere & fiscal crisis with decaying conditions (white flight) What is the holding here? "It has to follow, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries." So, this is an attack on exclusionary zoning that reflects policy encompassing all of these concerns We don't have to have any racists in his story for a rational person to choose to go this same route with exclusionary zoning in their municipality (10)And, after this case, growth of the suburbs are successful even despite these negative effects This case is really about gentrification: not about keeping people from coming into the place, but rather about forcing certain people who already live there to get out (12)After this opinion, very few other states adopted anything that looked like this, and the ones that did were very ineffectual because the suburbs revolted. Here, this led to ML2 and the builders remedy & eventually to the legislature for fair housing legislation (13)We have done very little to correct segregation or restore places like Camden (14)Debate across the country today: we want to build more housing to pick up the supply problem, but should we be building more subsidized housing? Housing for who?

Green v. Lupo

(p. 520) What happened? Parties here are Don and Florence Green and the Lupos The Greens sold a northern tract of land to the Lupos on condition that the Lupos give the Greens an easement to the southernmost 30 feet of their purchased plot for ingress and egress and for road/utility purposes. The parties executed the easement writing, but it did not specify whether it was to be appurtenant or in gross The Greens then divide their property into mobile home parcels, and the youngsters who move in cause problems by riding their motorcycles through the easement Perturbed by the motorcycle riding, the Lupos refused to grant the easement to all of the mobile home parcels, alleging that the easement was only for the Greens's use. The Greens brought suit What does it mean to be in gross or appurtenant? This is an unremarkable case that tells us that. We want to know if the easement is personal/in gross—so as to apply only to the Greens—or appurtenant—so as to run with the land The easement language in the deed itself is ambiguous, so the court allows parol evidence in to illuminate the parties' intent The default in ambiguous cases is to presume the easement is appurtenant Particularly where the easement is to the benefit of one and the burden of another, it is appurtenant Why have this rule? It prevents you from just handing out a bunch of personal easements to people everywhere Appurtenant easements are easier to see and make court decisions around How would you make an easement personal clearly? Just say in the easement contracting language that it is intended to be personal or in gross! And this works the same the other way: if you want it to be appurtenant or run with the land, just say that too! On the back end of this case, the court just says hoodlums are creating a dangerous nuisance with their motorcycles, but there is insufficient evidence to justify a total ban, so the remedy needs to be narrower here—that the easement shall not be used in a way that creates a dangerous nuisance

Neponsit Property Owner's Association v. Emigrant Industrial Savings Bank

(p. 563) What happened? Neponsit Realty Company (Neponsit) subdivided a plot of land for residential development. The deeds contained a covenant requiring the purchaser and all successors to pay an annual fee to an owners' association for maintaining common areas like roads and other public purposes. The covenant gave Neponsit or its successors or assigns the right to foreclose a lien for failure to make payment. The covenant expressly stated that it was a real covenant running with the land. The Neponsit Property Owners' Association (POA) (plaintiff) was formed. Emigrant Industrial Savings Bank (Emigrant) (defendant) bought a property in the subdivision at a judicial sale. Emigrant's deed contained the covenant. Emigrant failed to pay the fee, and the POA sued to foreclose on the lien. Emigrant counterclaimed and moved for dismissal or judgment on the pleadings, which was denied. The POA's motion to strike affirmative defenses and dismiss the counterclaim was granted. The appellate court affirmed but granted Emigrant leave to appeal to the Court of Appeals of New York on certified questions. When we talk about horizontal and vertical privity, this is kind of what we are talking about Neponsit and Deyer have horizontal privity Deyer and Emigrant savings have vertical privity, and Neponsit and Neponsit Property Owners Assoc. have vertical privity The first question is is there a writing? And is there an intent? Yes, the covenant is in the original deed with the Deyers and it says pencil p. 563. First sentence doesn't really say anything other than that the Deyers agree for their heirs, successors and assigns, and further covenants, that the property conveyed shall be subject to an annual charge not exceeding a certain amount The next sentence establishes the Neponsit may create a property owners association by assigning their interest to such a group, and if that happens, the annual dues will then be due to that association. So they are assuming that once they have sold all these lots, they will create this association and make all of the covenant dues then due to the HOA Said charge will then become a lien on the land. So if you don't pay, there is this encumbrance on the land. It specifies that the money may be used for the maintenance of roads, paths, parks, beaches, sewers, and other such public purposes that may be determined by them And it gives Neponsit and its heirs and assigns the right to collect such a charge and enforce the lien afterwards The big kicker: these covenants shall RUN WITH THE LAND and shall be construed as real covenants running with the land for a period of years the is about to expire The Deyers agree to this, it is a covenant in the deed that they have. So do they have notice? Yes, they have constructive notice by acquiring the land, and probably some actual notice because they signed the deed Are Neponsit realty and Deyer in privity of contract? Neponsit and Deyer are Are they in privity of estate? They don't have strict privity of estate, because they never owned it at the same time Strict horizontal privity of estate requires them both to own interests in the land at the same time, either through a landlord tenant relationship or through mutual easements on the land of some kind. Strict horizontal privity doesn't exist if somebody just buys the land from somebody else But if you bring in the concept of instantaneous privity of estate where we think there is a split second during the transfer where they both own the estate, then yes, under this fiction they are in privity of estate Simultaneous privity: the court comes in and notes that what we will say is that there is horizontal privity at the time of the sale even though this is just a fiction about the fleeting moment of simultaneous interest in the land Most courts recognize this as a form of relaxed privity of estate So, no strict privity, but yes relaxed privity of estate because of simultaneous privity of estate The question for the court (and this is why the privity stuff matters) is whether Neponsit property association can sue emigrant savings bank? So Neponsit is in privity of contract with Deyer and can sue them, that is unquestionable But what if Deyer is no longer the owners of the property, as is the case here? Emigrant savings bank owns the property here because they took it from Deyer in a foreclosure (foreclosed on the property and then bought it in the foreclosure sale) So now emigrant savings bank says I don't want to pay the dues Pretending the HOA doesn't exist, could Neponsit realty sue emigrant savings bank? The way we figure that out is we have to ask does the burden of the covenant run to emigrant savings bank? That is, does it run with the land? In the old days, we would have asked if emigrant savings bank was in privity of estate, either horizontally or vertically, with Neponsit? We would say that Neponsit is in horizontal privity with Deyer because of the instantaneous privity. Now the question is is Emigrant savings bank in vertical privity with Deyer? The answer is yes. Why? ESB has succeeded the Deyers in their full interest in the property. Not a landlord tenant relationship, they have acquired the whole property. Once you have both of these privities, then the burden of the covenant is going to run to ESB (if it touches and concerns the land) Then Neponsit could sue ESB and put a lien on the property Then we have to ask if the benefit runs from Neponsit realty to Neponsit property Owners association In theory this is the same privity analysis just on the other side of our relationships What they really want to do is have NPOA to be able to sue ESB, not Neponsit realty co because they say they have assigned their interest Vertical privity happens where the successor in interest succeeds the whole property; the whole property comes to them So NR has assigned their interest to the NPOA, which is a little weird because the NPOA doesn't own anything. And this becomes a problem in the case They are saying these guys have no property interest here. They don't own any property that is burdened or benefited by the covenant, they just have a right to collect dues. And that's a problem! Another way to say this is there is no vertical privity between the NR and NPOA They fix this problem by finding the HOA is essentially an agent of the other property owners (the neighbors). How many of those are there? Maybe a lot, we don't know because this is a subdivision In other words, each of those property owners owns property that they purchased from Neponsit realty company, they are successors in interest under vertical privity. They can then enforce the covenant against any other owner in the subdivision because they are benefitted by it, therefore they can enforce the covenant against ESB The court says here that that is really who is actually suing here. NPOA is just an agent or representative of the true parties in interest, which are the other property owners So, we have requisite vertical privity on the benefits And thus, we have the requisite privity of estate as between NPOA and ESB to enforce the covenant If this were under equitable servitudes, we need notice. Is that the case here? Notice of ESB? Maybe actual, but definitely constructive because it is in the deed, and perhaps inquiry if they should have looked around and said there is a burden on this land Notice of NPOA? The intended beneficiary of the covenant doesn't have to have notice. We don't care. Why? They are the ones enforcing it. We just care about the one being burdened having notice The other problem in the case is touch and concern. What is going on with that here? We need to know whether the covenant has a benefit directly associated with the land. This goes back to our appurtenant and in gross discussion with easements If I just got into a discussion with my neighbor that says you should pay me dues, we would wonder if that would run with the land (privity), and we also would wonder if it touched and concerned the land What we mean by appurtenant is that it must meet this touch and concern test to show it runs with the land, which comes down to the following: bottom of p. 564 Imagine paying you and you getting a rose every summer from my rose garden. This is unrelated to the use of the land. Touch and concern means (top of 565). That is, what the court is asking here, does the covenant have something to do with the use/enjoyment/purpose of the land? Court here says yea, this is met here despite what we normally think about monetary fees. Why? The fees are being used for maintenance of things like roads, public parks, etc. which have to do with the value of the land If the funds were to support a daycare center or school? Would it count as touching and concerning the land? It might or might not, it depends on if this is an amenity that people want to pay for and if that changes the value But none of these things like the roads/parks/beaches have anything to do with the physical upkeep of the property So one reading of this is if it involves the physical upkeep of the property, then it touches and concerns the land Or you could say no actually anything that involves a change or increase in the property owner's value in their property or home can be said to touch and concern the land (broader) And this might include dues to pay for lots of different things So what we have seen is a loosening of the constraints on what kinds of benefits and burdens will run One of the signal cases in loosening those constraints on restrictive covenants, and it does so in 2 ways It allows the POA to enforce the benefits on their side even though they don't actually own any property because it says they are the agents of the actual property owners An affirmative duty to do something, which can't normally touch and concern the land, does touch and concern the land when it looks like this. That is, when it implicates the care taking and impacts the value of the common property that gets down to all of the property owners like this That begs the question of whether touch and concern goes beyond these kinds of dues structures to pay for other things Frankly, for most HOAs, those kinds of dues just come with the territory Whether these touch and concern is a question, but today we ask more are they reasonable and the answer is probably as long as you knew about them

Lloyd Corp. v. Tanner

(p. 65) Note that this is the Supreme Court now, so now we are looking at the law for the whole country and not just an example of state law What happened? The Petitioner, Lloyd Corp., Ltd. (Plaintiff), owns a sixty commercial tenant shopping mall including all land and buildings on a fifty acre lot. Public streets and sidewalks bound the mall on each side. For the eight years prior to this incident, Petitioner instituted and upheld a policy strictly forbidding the distribution of flyers (handbills) on the mall premises. On November 14, 1968, Respondent and 5 others entered the mall and began distributing handbills to mall shoppers to protest the Vietnam War. This was done in a quiet and orderly fashion. However, one customer complained. As a result, mall security told the Respondents that they were trespassing and would be arrested unless they left the premises. Respondents quietly left the premises and began distributing their handbills from the public sidewalks and streets surrounding the mall, but challenged their removal in court. The district court found a First Amendment right to distribute handbills in the shopping center, and issued a permanent injunction restraining it from interfering with such right. The appellate court affirmed. In 1972 when this case happened, the idea of the mall was new, so the court spends a good deal of time describing and characterizing it The basis for the lower court's opinion was largely Marsh v. Alabama, which we have of course seen before SCOTUS though distinguishes Marsh from the present case: The town and the mall are not the same At the mall, there are no public sidewalks or even roads They limit Marsh to its facts essentially and say the mall is not a company town, so Marsh doesn't control Court at one point very weirdly even seems to suggest Marsh never happened: "This court has never held that a trespasser or uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only." p. 67 Court then invokes the state action requirement: "It must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and sassily by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only." p. 67 Note that the 1st amendment applies to the states only by virtue of the 14th amendment. It otherwise applies to the federal government Marshall dissents: pushes back on the state action requirement: the center is already open to first amendment exercise, so this is really just viewpoint discrimination more than it is protecting the right of private actors to be free from the first amendment He also makes a larger point that malls are the new downtown business districts: Malls are great places to reach a lot of people, and to keep the first amendment out of the mall is to cripple public communication Notably, history has not born out this point with the onset of social media. BUT, these platforms are private just like the mall is, so they can also engage in arbitrary exclusion and then Marshall's concern may become valid In sum, SCOTUS says this is private property, nothing we could do here and nothing that we really want to do either absent there being some kind of a statutory prohibition

Carr v. Deking

(p. 678) Tenancy in common: case is an example of partition What happened? Joel Carr (Plaintiff) and his father George Carr owned a parcel of land as tenants in common. They leased the land to Richard Deking (Defendant) on a year-to-year oral agreement over several years. One year, Plaintiff informed Defendant that he wanted cash rent instead, but Defendant did not agree. Defendant then went to George Carr and negotiated instead a ten-year lease, unknown to Plaintiff. Plaintiff never consented to the lease and did not authorize his father to act on his behalf. Plaintiff then informed Defendant that his lease had expired, but Defendant claimed possession through the lease with George Carr. Plaintiff sought to eject Defendant; Defendant seeks partition. On our gut, it seems really unfair here to Joel that George went behind his back and make a deal contrary to the deal Joel wanted But the court here says sorry, there is really nothing we can do! As a tenant in common, George has a unilateral right to sell or lease his property however he sees fit Here, is Joel bound by the Deking/George agreement? Not really! The court says you can either reap the benefit of the lease, or you can sue for partition Partition here is the unideal solution though because you don't only want to have access to half the farm as opposed to the whole Why adopt this rule? People get to do their own thing and don't need consent to do it, so it maximizes autonomy You always have the option to opt into a more binding personal arrangement by entering into/creating a JT under the 4 unities, avoiding this whole debacle This case is just a good example of how the rule works and how it might lead to some injustice but with good reasoning

Tenet v. Boswell

(p. 679) Joint tenancy with right of survivorship: an example of leasing powers under JT What happened? Hazel Tenhet (Plaintiff) and Raymond Johnson owned land as joint tenants. Johnson leased the property to Boswell (Defendant) for ten years without Plaintiff's knowledge or consent. Johnson died three months after the execution of the lease. Plaintiff then sought her right of survivorship and demanded Defendant vacate the property. The problem was she could not take that share if the lease severed her JT She brought an action to have the lease declared invalid. First, the court says that the lease does not sever the JT "The problem here is like a comet in our law: though its existence in theory has been frequently recognized, its observed passages are few." p. 680 "It is our opinion that a lease is not so inherently inconsistent with joint tenancy as to create a severance, either temporary or permanent." p. 681 Note: we would NEVER want to say this on an exam It is just circular reasoning: the court here is asked to define the relationship between the lease and the JT, and instead they say just say that the character is not inconsistent without defining the character The court tries to tie their reasoning in with the intention of the parties, but clearly Johnson did intend to sever the tenancy by giving the lessee an option to buy at the end So really this reasoning is all crap Second, the court says that the lease does not encumber the right of survivorship Boswell, the lessee is shit out of luck and must leave, and the other JT inherits the whole parcel unencumbered Why have this? Understanding is that if the parties are under a joint tenancy, the ROS must be preserved unless there is an express intention to break it The court here also seems to suggest that a prudent lessee would have looked into this, but in the real world this seems pretty impossible Really, then, Boswell was just leasing the property for 10 years or Johnson's natural lifetime, whichever expired first If this had been a TIC case, the property would have gone to Johnson's heir or Boswell, encumbered by the lease, and then the two of them would be TICs with each other So, the rule: the lease doesn't server and doesn't survive the death of the leasing co-tenant in joint tenancy situations (in this jurisdiction) Other alternative rules are also possible: The lease doesn't sever the JT but it does survive The lease severs the JT The lease pauses the JT while the lease is active Etc. Note all of these same rules could apply to mortgages as well

Matthews v. Bay Head Improvement Association

(p. 72) What happened? Bay Head, a private entity, owned the access dry sand areas (via revocable leases) and six beach front lots. They controlled beach access during the summer for its membership by restricting it to property owners and residents of the town of Bay Head. The public could gain access to the land east of the high water mark and is not stopped from occupying it under the public trust doctrine and as a matter of settled expectations: Precedent cases found public rights in dry sand areas was limited to those beaches owned by a municipality Court sought to address how far the public trust doctrine extends in this case Public Trust Doctrine: The ownership over land that goes from sea to the high-water mark (land which water flows), is held in the trust by the state, for the public Public right to use this area: navigation, fishing, bathing, swimming, etc. (Avon) Even before this case, fishermen could could pass through the dry without issue. For others, to get to this area you had to take a boat and stay on the wet sand until you passed through Court here held that if the public trust doctrine means anything it means you have to be able to enjoy the dry sands too "Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is allowed. The complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water's edge." p. 76 The court had seen a municipally owned beach case before this, but now they have this case where the beach is owned by a quasi-private organization We see a Marsh type argument here: you may technically be a private organization, but you act like a public organization in almost all ways, so we are going to put you under the same restrictions and say you cannot arbitrarily treat residents and nonresidents differently Three other doctrines under which they could have decided this case and justified public access to beaches (other than public use doctrine): Dedication: gift of real property from a private owner to the public at large; requires an offer by the owner and acceptance by the public; longstanding acquiesced in use of beachfront property by the public may be interpreted as implied dedication by the property owner and acceptance by the public (Gion v. City of Santa Cruz) Prescription: if the public has used property possessed by another for a particular purpose for a long time (measured by the relevant statute of limitations), the public can acquire such rights permanently even if they never had them originally or if they had previously been reduced due to private ownership This is the doctrine behind the prescriptive easement Custom: the community has a settled expectation of the beach area being available to the public, and so to deny them continued access would be the wrong rule for the law to adopt (State ex rem. Thornton v. Hay) All three of these are example of history use granting property rights to a group What do we make of this rule? Very broad, you could just have a right to cross but you don't need a full right to rest and relaxation To argue against opening up the beach, you could make privacy and taxpayer arguments, but those probably aren't great

Wood v. Board of Country Commissioners of Fremont County

(p. 756) What happened? Cecil and Edna Wood conveyed land to Fremont County by warranty deed which specified that construction of a hospital on that site as a memorial was necessary The county built a hospital and operated it. They then sold the hospital to a private company, that later moved the operation and put the premises up for sale. Cecil and Edna are alive, and since they sold the property with the purpose of a public hospital being constructed and run that them selling it and making it a private hospital and then selling it all together violates the condition and the land should go back to them. What are the arguments? The Woods now contend that the language of the deed created either a FSD or a FSSCS with a right of reversion if the land ceased to be used as a hospital, and they seek to have ownership of the land transferred back to them The hospital/county says that this is a fee simple absolute because the magic words were not present Lower court says that they created a fee simple absolute, and the current court agrees: "The plain language in the 1948 deed, stating that appellants conveyed the land to Fremont country hospital, does not clearly state that the estate conveyed will expire automatically if the land is not sued for a state purpose. As such, it does not evidence an intent of the grants to convey a fee simple determinable, and we hold that no fee simple determinable was created when the land was conveyed." p. 757 "We hold that the plain language of the 1948 warranty deed, while articulating that the land conveyed was to be used for a county hospital, does not clearly state an intent of the grantors to retain a discretionary power to reenter the land if the land ceased to be used for the stated purpose. Appellants did not convey a [FSSCS], and we will not create one by constriction some forty years after the conveyance took place." p. 758 After they lost in Wyoming, they went and next sued their lawyer who originally created their trust; looked like malpractice because it wasn't what they wanted The case is silly, it is just an illustrative case What justifies the rule that the court adopted? Law favors the fee simple absolute because we don't want the land to be encumbered by these future interests that constrain

Vasquez v. Glassboro Service Association, Inc.

(p. 818) What happened? We are in NJ in 1980 Glasboro Service Association, Inc. (Defendant) hires out migrant farm workers to farmers. Pursuant to a contract with the Puerto Rican Department of Labor, Defendant also supplied living quarters for workers. Natividad Vasquez (Plaintiff) worked for Defendant under contract but was discharged from his position. Although there was vacant space in the living quarters, Plaintiff was not permitted to remain overnight. The Farmworkers Rights Project, a federally funded non-profit corporation dedicated to the needs of farm workers, filed a complaint seeking an order permitting Plaintiff to reenter his living quarters and enjoining Defendant from depriving him of the use of the quarters except through judicial process. This is just the question of who is a tenant, which we need to know before we can apply landlord tenant law. Who gets the status of a tenant/falls into this common law created relationship and the stuff that comes along with that under the common law and statutes? Specifically here, the question is are migrant farmworkers who live on a farm in a community barracks and signed a contract to come and work and labor in the state, are they tenants? If they are, a bunch of property law applies to them If not, something else applies to them At common law, would these folks be considered tenants? No, "At common law, one who occupied premises as an employee of the owner and received the use of the premises as part compensation for his services or under a contract of employment was not a tenant." p. 819 Under statutory law (where the court goes next) are they tenants? The stature here (p. 819 in blue) prohibits the eviction unless the landlord showed good cause, as defined in the statute. Additionally, it allow eviction if the "landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated." Looks like it allows for some employment housing relationships to be tenancy, departing from the common law rule some. They give examples of superintendent, janitor, or ejusdem generis (things of the same kind) Here, the court says that a migrant farm worker is not the same or of the same kind as a superintendent or janitor. If we hadn't read the case it might be kind of a close question, and we need to know some of the relevant characteristics. The court points us to some of these on 819-20, which is living with families and privacy and things. Here, migrant farm workers are very much unlike the janitors and superintendents Therefore, migrant workers are not tenants. They are mere licensees who have permission to house intermittently on the premises. Under this, are RAs tenants or are they employees? More likely than not they are employees who are mere licensees on the premises Can this come from the language of the contract, or does the court have to make an independent judgement? In other words, can you contract around your status as a tenant? No! The obvious answer is no. You can't contract around the law if the law is not a default, and we don't want you to be able to contract around this classification decision because every landlord/tenant contract would then just say "you are not a tenant" and that would lead to a lot of really unconscionable scenarios Anyways, the court here says they are not living in private areas, their families aren't there, the situation is temporary and tenuous, and thus a migrant farm worker is not like those other things so they aren't tenants The second part of the opinion then says ok you're not a tenant, but even though that's not the case, you are entitled to an investigation on the contract that you do have and we can still regulate this eviction They say that there needs to be better process for eviction of the migrant workers even despite the fact that they are not tenants Now we are in contract land and out of landlord tenant. We are now putting mandatory terms in the employment contract, and what they are implying is a mandatory term that says if you are fired, you have to get a little bit of time and notice before we kick you out of your living situation They discuss unequal bargaining power at one point They discuss unconscionability, specifically substantive unconscionability These are contracts of adhesion, making them substantively unconscionable (what does a standardized contract look like and all that) They also may be procedurally unconscionable because there is no evidence that this migrant worker, who only speaks Spanish, was ever given a Spanish version of his contract There is also a pretty clear public policy requirement for giving such notice before throwing migrant workers out; they cite State v. Shack as supporting greater rights for migrant workers in housing in particular and this particular vulnerable group. And they discuss a remedy here: Part IV of the opinion here "At common law, on termination of employment, an employer could dispossess an employee who occupied premises incidental to his employment..." p. 823 NJ, like many other states, is departing from the common law rule here by disallowing self-help There is this thing called a summary dispossess proceeding to remove tenants, and that is a faster way to get folks out even when they are tenants Now, the court has to figure out if you aren't a tenant what you get, because the remedies like summary dispossess hearings are not available but we still think you have some rights What mechanism is it here? They suggest summary action under NJ Rule 4:67 as a more appropriate proceeding. We have no idea what this is, it is some kind of summary action but that is the appropriate proceeding In essence, they say they are not tenants, but the SCONJ gives them a summary dispossess proceeding under this other rule Why do this? Why not just treat them as tenants? They do want to give them some kind of process before they are kicked out, but they don't want to give them other rights that landlords have in needing maintain the housing under certain conditions Tenancy comes with conditions: Tenants at sufferance (holdovers) have certain rights and are allowed to stay over Landlords must maintain certain conditions (warranty of habitability) Tenants can assign or sublet their property interest (unless explicitly specified) So there will be a whole set of things both statutory and common law that a transfer of a property interest like a leasehold would entail because that is a property transfer. Those protections would not fit into this kind of relationship, so the NJ Supreme Court wants to help these people out on public policy grounds and give them process but not those other things, and they do it through contracting instead of calling them tenants They rule that the employment contract must include some term that says you are entitled to this summary-like process that protects you from being immediately removed in situations like this. They also say you might be entitled to time in addition and some other things "An appropriate remedy might include time in addition to that implied in the contract, assistance in obtaining alternative housing, return passages to Puerto Rico, or some other form of relief." p. 823

Pottinger v. City of Miami

(p. 82) What happened? Plaintiffs filed action in December of 1988 on behalf of themselves and approximately 6,000 other homeless people living in the City of Miami. They alleged that the City of Miami had a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life—including sleeping and eating—in the public places where they are forced to live. The City had arrested thousands of homeless people under various City of Miami ordinances and Florida Statutes, and plaintiffs alleged that the city routinely seized and destroyed their property and has failed to follow its own inventory procedures regarding the seized personal property of homeless arrestees and homeless persons in general. Do people have a right to shelter, or a right to be anywhere legally? Keeping in mind the housing shortage and keeping in mind that a right only means something if we have a way to enforce it What is happening really in the court's decision? The nature of the right that the homeless have here is a right not to be arrested for innocent, harmless, and inoffensive acts like sleeping, eating, bathing, etc. in public if they don't have a private home to do those things in AKA a negative right against the no camping policy While on the face the no camping policy criminalizes acts, the court here found that what this really does is criminalize the status of a person—their homelessness The opinion does not go as far as to say that we have an affirmative right to housing In fact, we have very few affirmative rights at the federal level anyways Part of this opinion is being driven by a political purpose: if you can't arrest these people and they are continuously occupying public spaces, it might force a political reckoning with the problem and the creation of shelters or somewhere else to house these people Of note here, there still may be no obligation to provide public spaces, so many places have instead ended up just privatizing all of their spaces or making their public spaces uninhabitable (with like spikes)

Kendall v. Ernest Pestana, Inc.

(p. 839) What happened? City of San Jose owns the hanger. They lease it to the Perlitches for an unspecified period. The Bixlers then sublease the hanger from them for four five year subleases. The Perliches then assign their interest to Ernest Pestana Inc. The Bixlers conducted business for 11 years, then wanted to sell the business to Kendall and the O'Haras. In order to do that, they need to assign their sublease. Pestana objects to that assignment. Their contract has a consent term which says they need permission from Pestana, and Pestana wants to exercise their ability to say no However, Bixler argues that this interest can only be exercised if it is exercised reasonably. Of note: Pestana owes rent to San Jose as the assigned party, and the Bixlers/Kendall owe rent to Pestana. If the Bixlers/Kendall default on rent, San Jose can only go after Pestana. They can sue him for rent or evict him or both, and Pestana can then go after the Bixlers, but they are the primary ones on the hook Court here says that an exercise of consent must be reasonable and imply a reasonableness term to the lease condition that demands consent. A couple of reasons for this: A lease is both a conveyance and a contract With it being a conveyance there is an interest to promote alienation And in contract world, there is this duty of good faith, especially in commercial settings Then they address a bunch of objections: A lease is a conveyance of personal interest and they are under no obligation to deal with any kind of a third party. That is why there is a property interest: this is a transfer of property, and I don't want to deal with a third party and can give any reason I want for that Property argument: we shouldn't be forced to look to third parties The approval clause de facto is an arbitrary exclusion clause, and they could have bargained for a reasonableness clause but they didn't Pure contracting argument: don't/shouldn't imply a term not bargained for They rely on stare decisis and say that leases currently in effect are all founded upon this rule Court says weirdly that you should have seen this coming. How could you not know that this would happen eventually? You should have known the minority rule was coming and we were going to adopt it, sorry The right to realize the increased value of the property belongs to the landlord, not the lessee/tenant This is where it really heats up, as what Pestana wants is to reserve the capital gains for themselves at least in part and doesn't want the Bixlers to be the sole profiters. They are up front about this, they say I get to do this as the lessor. Really not about not dealing with Kendall, just that they want to be the ones that get to keep the profit and not their tenants The court says no no no, the Bixlers get that We have to ask ourselves why one or the other gets that. We need some kind of justification for having it be this way, which isn't really present here. Kind of meh/arbitrary

Slavin v. Rent Control Board of Brookline

(p. 844) What happened? A residential lease stated that the tenant could not assign or sublet his premises without first obtaining the written consent of the landlord. The rent control bylaws state that if a tenant violates his lease, a landlord can seek to evict the tenant. A landlord (Plaintiff) sought to evict Barry Myers (Defendant) after he let someone occupy his apartment without obtaining Plaintiff's consent. The rent control board (Defendant) refused to issue an eviction certificate because it determined that the requirement of consent implied reasonableness. They found that the landlord had acted unreasonably, so the tenant did not violate the lease. Can a landlord withhold consent for an assignment/sublet for no reason at all (in the residential setting)? The court here says yes they can Court cites Kendall and rejects it They distinguish Kendall from this cases on the basis that Kendall was in a commercial context and here we are looking at a residential context Notably, they really don't need to do this here because we are in a separate court system and Kendall is just persuasive precedent But they choose to do it anyways, which suggests to us that they do think this difference is worth noting regardless Although this is weird because in Massachusetts the court has also held that they won't imply reasonableness into commercial leases either Is this the right decision? What do we think? Here, we have options: We could accept both Kendall and Slavin as good rules We could reject both Kendall and Slavin as bad rules We could reject Kendall but accept Slavin and say Slavin should apply in all contexts We could accept Kendall but reject Slavin and say Kendall should apply in all contexts The rule here is not very tenant-protective Notably, if the lease said you cannot assign or sublease at all, that would be fine. So really, this question only applies in a very narrow set of cases where it reserves consent for the landlord but does not specify if that consent needs to be reasonable or not

Javins v. First National Realty Corp

(p. 874) What happened? Tenants (Appellants) at a housing complex did not pay their rent for one month. The landlord, First National Realty Corp. (Appellee), sought possession based on the default. Appellants admitted they had not paid rent but alleged numerous violations of statutory housing regulations as a defense. This is the first case to put forth an implied warranty with attached liability and give tenants their own private right of action based on the housing code. Prior, they could not withhold rent and they could only complain to the housing board The court made this term mandatory, or non-disclaimable Under this new term, they allowed tenants to withhold rent or use the warranty to defend against eviction actions for not paying rent What are the justifications? We are no longer an agrarian society with an interest only in the land below our housing; now, housing is a service that people provide to one another Today's city-dweller usually has a single, specialized skill unrelated to maintenance work and is unable to make the repairs like the old jack of all trades farmer was in the common law model of the lessee Urban tenants today are more mobile than ever before and don't remain on one piece of land for their entire lives, so they don't have an incentive to invest in the land Structures today are much more difficult to repair, and in multi-unit residences, tenants may not be able to even obtain access to make repairs Housing is a critically important feature of our rights, and we want to make standard housing available for all people We want to avoid having contracts of adhesion and even out the impacts of unequal bargaining power in residential tenancies Landlords are the cheapest cost avoider and best positioned to make the repairs, especially because landlords are already bound by the housing codes We are concerned about some third party harms, like harms to children, that come from raising families in rented areas Made huge changes to the duty of repair: Prior, there was no duty of repair Imports important consumer protection and contracts concepts into property law Something to note here is how all of the cases we have looked at this semester either expand or contract the old property doctrine in some way Most courts now hold that there is a warranty of habitability in residential leases Should the same be true of a duty to repair in commercial contexts? We want to look at the justifications given above and decide if the same justifications would make sense in a commercial context It seems like most of them would not apply in a commercial context

Neuman v. Grandview at Emeralds Hills, Inc.

(p. 88) What happened? The Neuman's live in the GrandView Condominium Complex during the winter months which comprises of 442 members. There is an auditorium there the members can reserve for social gatherings. There was a rule that religious meetings where fine as long as 80% of the participants at the meeting where members of the complex. In January several member reserved the hall from 8:30a.m. to 12:00 p.m. on sat mornings for a party that was actually religious services. 40 members attended. Upon realizing the religious services were being held, several members complained to the point it was causing much havoc and tension between the members. The board held a vote where 70% of the members voted to have no religious services held in the auditorium. The board then unanimously voted to amend the rule completely prohibiting the holding of religious services in the auditorium. So this is a dispute over a prohibition on having religious services in the auditorium Why don't they want this? What reason did 70% of the community vote for this restriction? Maybe the services are monopolizing the space at a critical time Maybe they don't want people think they live in a religious community or have religion dominate the community culture Maybe this is purely bias More than likely it is some kind of identity issue Court here cites Norman and looks to the FL statute and says that the board can adopt reasonable restrictions so long as they do not unreasonably burden the right to peaceably assemble Notice the political policy language as well: "no entity or entities shall unreasonably restrict any unit owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak..." The state can ALWAYS come in and override CCRs (covenants, conditions, and restrictions) via statute The court here says that this is not unreasonable because there are still other ways to assemble. The restriction, rather, is about religion, not assembly. Additionally, it is inherent that some people in a condominium complex have to give things up (strong right association like in roommates.com) and here there is a majority owners rule (with voting tied to ownership/property-based voting qualification distributed by share), and so this is reasonable. Why is this not a violation of the First Amendment, as they argued? Private action instead of state action here (though put a pin in this and how the judge's choice to uphold this covenant is state action)

Charrier v. Bell

1986 Remains dug from the ground belong to the Native American Community in Louisiana. This would be the case in 30 states and then passed as an act in 1990.

Slavin v. Rent Control Board of Brookline

A residential lease stated that the tenant could not assign or sublet his premises without first obtaining the written consent of the landlord. The rent control bylaws state that if a tenant violates his lease, a landlord can seek to evict the tenant. Slavin sought to evict Barry Myers after he let someone occupy his apartment without obtaining Plaintiff's consent. The rent control board refused to issue an eviction certificate because it determined that the requirement of consent implied reasonableness. They found that the landlord had acted unreasonably, so the tenant did not violate the lease. Can a landlord withhold consent for an assignment/sublet for no reason at all (in the residential setting)? The court here says yes they can Court cites Kendall and rejects it They distinguish Kendall from this cases on the basis that Kendall was in a commercial context and here we are looking at a residential context Notably, they really don't need to do this here because we are in a separate court system and Kendall is just persuasive precedent But they choose to do it anyways, which suggests to us that they do think this difference is worth noting regardless Although this is weird because in Massachusetts the court has also held that they won't imply reasonableness into commercial leases either Is this the right decision? What do we think? Here, we have options: We could accept both Kendall and Slavin as good rules We could reject both Kendall and Slavin as bad rules We could reject Kendall but accept Slavin and say Slavin should apply in all contexts We could accept Kendall but reject Slavin and say Kendall should apply in all contexts The rule here is not very tenant-protective

Desnick v. ABC

ABC asked Desnick if they could film on his premises for a program on eye surgery. ABC stated no undercover or ambush tactics for filming. Desnick consented to them filming. ABC used these tactics with test patients, and aired a highly critical piece on the eye clinic. Desnick sued for trespass. Rule for trespass: "to enter upon another's land without consent" p. 10 But, here the consent was obtained fraudulently, which normally would eviscerate consent Posner provides several examples of cases in other settings that would be similar to this case. All of these involve fraud, regardless of category. What is the distinguishing principle then? "It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person's property." p. 11 Standard then: Consent obtained by fraud is not a trespass if the social benefits of the invasion outweigh the social costs and the use of property is non-disruptive and in line with standard use "The lines are not bright—they are not even inevitable." p. 11 Some concept of social norms is at play here, in addition to a privacy component and some bodily autonomy principles (rights), and for sure a concept of social welfare at work

Lobato v. Taylor

After the Mexican American War, Charles Beaubien acquired a grant of about 1 million acres of land in what would become Colorado. In the 1850s, Beaubien recruited families to settle and live on the land as farmers. In 1863, Beaubien signed a grant (Beaubien Document) that granted the settlers rights of access and the "benefits of pastures, water, firewood and timber, always taking care that one does not injure another." In 1960, Jack Taylor (defendant) bought a piece of the Beaubien land. Taylor's deed stated that he acquired the tract subject to "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land." However, Taylor refused to allow local landowners (plaintiffs) access to the land. The plaintiffs brought suit, claiming they had easement rights to access the land. What is helpful about the Lobato case is that it just walks you through a bunch of different types of easements and it gives you an interesting text, the Beaubien document, to start with (what an old grant likes). We want to know why the old grant is ineffective (what are the reasons) and what does the court do with existing common law doctrines to make the grant nevertheless Is there an express easement here? The court here says no, there is no express easement They state that Mexican law doesn't apply because these grants were made after the US acquisition of the territory Dissent says also that this is a community grant, and it doesn't sufficiently specify who the grantees are so there can be no easement (this is a technicality, but whatever) The court says the document would have to have said first that this is a profit à prendre and that this was being granted to the landholders with their deeds and that all of their heirs and assignees retained this right (or that it was an appurtenant profit) Notably, though, the court does recognize that the Beaubien document establishes intent here for there to be use of the land by the surrounding parcels Is there an easement by estoppel? Easements by estoppel are based on reliance, or settled expectations Court says all of the elements are met here Most notably, the change in position is that all of these people moved from their prior homes to settle here Is there a prescriptive easement? The court says this is met here (see p. 541 in pencil for the casebook summary) Notably here, adversely is a term of art. Here, we treat a failed grant as adverse Is there an easement implied by prior use? The court says yes, each of the elements is met here Is there an easement by necessity? No, we need a landlocked parcel to have this and that is not present here In light of these findings, the court grants the parcel owners the ability to use the land for pasture, firewood, and timber Though it denies them the rights to hunt, fish, and use the land for recreation—which the concurrence takes issue with (10)What should we take away here? Note one on p. 544 talks about the federal and state action over this case, which is pretty interesting: Taylor in the 60s went to federal court over his practices on the land seeking a declaration that he had title free from any other claims, and the federal court granted his motion. But, in the early 2000s, this judgement became reviewable because they found that Taylor's federal action was void for lack of proper notice to the Latino residents. On remand in this action, then the Colorado state court granted the easements The claims in this case themselves are really not that remarkable, they for sure meet the elements they talk about in this decision. But we just like this case because it shows each one of the elements at work. (p. 537) What happened? After the Mexican American War, Charles Beaubien acquired a grant of about 1 million acres of land in what would become Colorado. In the 1850s, Beaubien recruited families to settle and live on the land as farmers. In 1863, Beaubien signed a grant (Beaubien Document) that granted the settlers rights of access and the "benefits of pastures, water, firewood and timber, always taking care that one does not injure another." In 1960, Jack Taylor (defendant) bought a piece of the Beaubien land. Taylor's deed stated that he acquired the tract subject to "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land." However, Taylor refused to allow local landowners (plaintiffs) access to the land. The plaintiffs brought suit, claiming they had easement rights to access the land. The Costilla County District Court found in favor of Taylor and the court of appeals affirmed. The plaintiffs appealed. The agreement here was made in the 1800s and yet we are litigating this in 2002 Is there an express easement here? Maybe. There is a writing, the Beaubien Document (p. 540) that says that settlers have their own vera strips and in addition all inhabitants will have enjoyment over the uncultivated land But the court here says no, there is no express easement They state that Mexican law doesn't apply because these grants were made after the US acquisition of the territory Dissent says also that this is a community grant, and it doesn't sufficiently specify who the grantees are so there can be no easement (this is a technicality, but whatever) The court says the document would have to have said first that this is a profit à prendre and that this was being granted to the landholders with their deeds and that all of their heirs and assignees retained this right (or that it was an appurtenant profit) Notably, though, the court does recognize that the document establishes intent here for there to be use of the land by the surrounding parcels Is there an easement by estoppel? Easements by estoppel are based on reliance, or settled expectations The elements: The owner of the servient estate permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that their position would not be revoked The user in fact substantially changed their position in reasonable reliance on that belief Injustice can be avoided only by establishment of a servitude Court says all of the elements are met here Most notably, the change in position is that all of these people moved from their prior homes to settle here Of note, easements by estoppel come about to avoid injustice and the court is not necessarily concerned about intent here Is there a prescriptive easement? This is just like adverse possession (and the elements are really the same), but it is about land use rather than about land ownership The court says this is met here (see p. 541 in pencil for the casebook summary) Notably here, adversely is a term of art. Here, we treat a failed grant as adverse Otherwise, we still need open, notorious, continuous, etc. And the court finds all of these here Is there an easement implied by prior use? The court says yes, each of the elements is met here: All of the estates used to be under common ownership under the Sangre de Christo The rights alleged here were all exercised prior to estate severance The use of the land was not temporary The continuation of the use was reasonably necessary for those people to continue to live there And there was no express or implied intent to the contrary—actually, the opposite from the Beaubien document Is there an easement by necessity? No, we need a landlocked parcel to have this and that is not present here In light of these findings, the court grants the parcel owners the ability to use the land for pasture, firewood, and timber Though it denies them the rights to hunt, fish, and use the land for recreation—which the concurrence takes issue with What should we take away here? Note one on p. 544 talks about the federal and state action over this case, which is pretty interesting: Taylor in the 60s went to federal court over his practices on the land seeking a declaration that he had title free from any other claims, and the federal court granted his motion. But, in the early 2000s, this judgement became reviewable because they found that Taylor's federal action was void for lack of proper notice to the Latino residents. On remand in this action, then the Colorado state court granted the easements The claims in this case themselves are really not that remarkable, they for sure meet the elements they talk about in this decision. But we just like this case because it shows each one of the elements at work.

Page County Appliance Center v. Honeywell, Inc.

Appliance Center originally had no trouble with their display televisions. Defendant placed one of its computers in a travel agency store near Appliance Center. After the computer was installed, the television reception on 2/3 stations would no longer work. The interference was traced to radiation leaking from the computer. Repairs were made to the computer, and though the reception improved, it was not returned to its condition prior to this incident. Appliance Center filed a nuisance claim. If you're the plaintiff TV store here, what do you claim the jury instructions should say? If the travel agency affects my business in any way, you should find a nuisance If you are the judge, you will want to add in the terms of reasonableness and substantialness to this statement If you are the travel agency, what do you want the jury instruction to say? You want the jury instruction to include a charge for the jury to consider whether AC is engaging in a hypersensitive use Also, you want it to say that the radiation coming out from the travel agency is fine and not harmful generally (non-negligent design) Although there is a problem here with the fact that the radiation leak was fixable And, you want it to say that unreasonable should mean that operating the computer is unlawful, not within normal operations, and contrary to the cost benefit analysis (a jury instruction that says you have to measure this) So how do we fix this situation as the court? Who do we rule for? Honeywell here is the CCA: they can fix the computer, or make a computer without radiation, or move But if AC is making less than TA is losing based on our quantifications, then maybe we say shit sucks, social welfare says this is the optimal situation Or maybe we want the parties to bargain: we have travel pay TV $500 to compensate them for their lost profits The jury here awards AC damages because the computer was fixed But note that the remedy sought here by AC and the remedy normally granted would be an injunction If we want these folks to stop showing up in court, where would we place the entitlement? Want to incentivize the company that has more wiggle room Remember the Coasian view is it doesn't really matter because the parties will bargain with one another anyways to create the best outcome We do care though in either externalities world or fairness/justice world

Matthews v. Bay Head Improvement Association

Bay Head Improvement Association is nonprofit that owns six parcels of land by the beach owns the dry land before the foreshore (wet sand). Membership was generally limited to residents of Bay head; only members were permitted to use the beach, and only residents could be members. Matthews, resident of a different borough, was barred from accessing the Bay Head beaches through the Association private land. They challenged this access issue in court Public Trust Doctrine: The ownership over land that goes from sea to the high-water mark (land which water flows), is held in the trust by the state, for the public Public right to use this area was already established: navigation, fishing, bathing, swimming, etc. (Avon as precedent) Rooted in Roman law, the public trust doctrine recognizes the public right to many natural resources including "the air, running water, the sea and its shore." The public trust doctrine requires the sovereign, or state, to hold in trust designated resources for the benefit of the people. Court here held that if the public trust doctrine means anything it means you have to be able to enjoy the dry sands too "Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is allowed. The complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water's edge." p. 76 The court had seen a municipally owned beach case before this, but now they extend the jurisprudence to a beach owned by a quasi-private organization We see a Marsh type argument here: you may technically be a private organization, but you act like a public organization in almost all ways, so we are going to put you under the same restrictions and say you cannot arbitrarily treat residents and nonresidents differently Three other doctrines under which they could have decided this case and justified public access to beaches (other than public use doctrine): Dedication Prescription Custom What do we make of this rule? Very broad, you could just have a right to cross but you don't need a full right to rest and relaxation

U.S. Bank National Association v. Ibanez

Best to track this through the chain of ownership here: Ibanez bought a mortgage from Rose Mortgage (the originator). Rose then assigned the mortgage in blank (assigned it without specifying an assignee), which was at some point stamped to assign it to Option One. Option One then assigned the mortgage in blank again. According to U.S. Bank, that mortgage was stamped over to Lehman Bros. Lehman Bros assigned the mortgage to Lehman Holding Who in turn assigned it to SASC SASC then assigned the mortgage to US Bank In Massachusetts, there is no need to get a court order to foreclose on a property. Ibanez defaults on his mortgage, and US bank buys that property in a foreclosure sale so that no one else can own it. US Bank then brings this action to court ON THEIR OWN to get quiet title because hey weren't sure that they had complied with the required conditions for foreclosure re: publishing. Here, the court issues a technical decision around did the bank that foreclosed on the property actually own the mortgage? The bank here says that the newspaper posting might be an issue, but we aren't going to worry about that because we don't know who owns these mortgages You have to own the mortgage to foreclose on it, and it isn't clear that the bank has this. US Bank here argues that of course we own this mortgage and produces all of these documents to prove that BUT, the documents weren't signed! This is a technicality, but the court still says this was not owned and assigned and thus not foreclosed upon appropriately under the law. They therefore void the foreclosure Illuminates circumstances like shoddy paperwork and lack of regard for the underlying credit during this time period The court does this to try to do whatever they can to slow down the foreclosure process (10)Again, there is not a lot of doctrine in this case. We just want a good sense of the statutory framework To summarize Fremont and Ibanez: Fremont: Court uses a general consumer statute to address the policy ailment of predatory lending. Here, we want to see the interaction of a bunch of different statutes and also be aware of the fact that mortgages are property interests with specific feature—not contracts—that get transferred between parties. Ibanez: We see a failure of banks in paperwork in the foreclosure process. Notice that in order to foreclose, you are supposed to publish the foreclosure sale in a paper of general circulation, that you don't need judicial permission to do it, but that you do actually have to be the owner of the thing to foreclose on it. A question to ponder: what part of the FHA would be violated by redlining or reverse redlining? (p. 973) What happened? Best to track this through the chain of ownership here: Ibanez bought a mortgage from Rose Mortgage (the originator). Rose then assigned the mortgage in blank (assigned it without specifying an assignee), which was at some point stamped to assign it to Option One. Option One then assigned the mortgage in blank again. According to U.S. Bank, that mortgage was stamped over to Lehman Bros. Lehman Bros assigned the mortgage to Lehman Holding Who in turn assigned it to SASC SASC then assigned the mortgage to US Bank In Massachusetts, there is no need to get a court order to foreclose on a property Ibanez defaults on his mortgage, and US bank buys that property in a foreclosure sale so that no one else can own it US Bank then brings this action to court ON THEIR OWN to get quiet title They weren't sure that they had complied with the required conditions for foreclosure because they only published the notice in the Boston Globe, and they weren't sure this constituted a paper of general circulation Here, the court issues a technical decision around did the bank that foreclosed on the property actually own the mortgage? The bank here says that the newspaper posting might be an issue, but we aren't going to worry about that here because there is a bigger issue: we don't know who owns these mortgages because of all the assigning in blank You have to own the mortgage to foreclose on it, and it isn't clear that the bank has this. Now, sua sponte, we have a case for Ibanez for the first time US Bank here argues that of course we own this mortgage and produces all of these documents to prove that BUT, the documents weren't signed! This is a technicality, but the court still says this was not owned and assigned and thus not foreclosed upon appropriately under the law. They therefore void the foreclosure Illuminates circumstances like shoddy paperwork and lack of regard for the underlying credit during this time period The bank just comes back and forecloses on the property again after this case after signing the documents, so this decision accomplished nothing in the long run But the court does this to try to do whatever they can to slow down the foreclosure process Again, there is not a lot of doctrine in this case. We just want a good sense of the statutory framework

Brown v. Gobble

Boundary dispute case The Gobbles purchased their property in 1985 and thought it included the fence and the two feet within it. When the Browns purchased their property in 1989, they had a survey done which showed that the fenced-in two feet wide tract of land that the Gobbles believed was theirs actually belonged to the Browns. At the time, the Browns did nothing to show ownership of that land. Five years later, the Browns decided to build a road on that land, but the Gobbles asserted ownership of the land. Browns commenced an action for ejectment. Here, the statutory period (SOL) was 10 years Elements of adverse possession: Actual possession: Gobbles had fenced in and maintained the fenced in two foot strip tract of land Open and notorious: witnesses called that said the reputation in the community was that the Blevins (to the Gobbles) owned the two foot tract of land Exclusive: only the Blevins/Fletchers had ever had control of the two foot tract, and their claim to the tract was never objected to. They acted as true owners would and never let anyone else settled there Continuous: tract was maintained, cultivated, and claimed by the AP party up until each transaction, at which time the new owners continued to do the same. No big breaks in their ownership Adverse/hostile: kind of assumed here, but witnesses testified as to the fact that the land was fenced off so that it could not be shared between the two properties at any point dating as far back as 1937 We don't see an intent requirement here. Gobbles are there mistakenly, but does it matter to this court? It may not since they don't specify intent They do address claim of right or claim of title here, which might be where we get intent: basically asks does the AP have the intention to appropriate and use the land as the average owner would. Here, the Gobbles and their predecessors never had actual title to the property, yet claimed actual title by virtue of their above actions Do we know what the court is requiring here as the state of mind of the adverse possessor, which gets back to our question of does it matter under the doctrine at all whether they were there by mistake or knowingly/willfully? The court here doesn't care. Some do sometimes, but this court basically uses an objective test: you went onto the property and you acted like a true owner would. We don't care about your subjective state of mind actually at all. Could be a mistake, could not be, it doesn't matter For the statutory period: the tacking had the Gobbles in adverse possession dating all the way back to 1937, which far exceeded the statutory period In fact, it may be that the previous owners had already adversely possessed the property even before the new owners obtained it

Uston v. Resorts International Hotel, Inc.

Casino asked Uston to leave and never return from the blackjack casinos based on his card counting strategy. Under the Casino Control Act commission, card counting was not a violation of the rules of blackjacks. Uston challenged his arbitrary exclusion The court decides here on a principle of a right to reasonable access, replacing the common law right to exclude The right to exclude seems to have racist origins: the common law switched its rule from reasonable access to a right to exclude at the same time when the black/white distinction began to take hold across America "The denial of freedom of reasonable access in some states following the passage of the fourteenth amendment, and the creation of a common law freedom to arbitrarily exclude following invalidation of segregation statutes, suggest that the current majority rule may have had less than dignified origins." p. 26 footnote 14 In light of this, the court decides to go back to a rule of reasonable access and cites a bunch of precedent/reasons for doing so: State v. Schmid State v. Shack New standard: "When property owners open their premises to the general public in 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 towards persons who come on their premises." p. 27 Uston goes a step further than prior cases to create a general right not to be excluded from reasonable access Note that Uston is a MINORITY rule. Most states still have a principle of arbitrary exclusion in place

Finn v. Williams

Charles Williams owned a large parcel of land. He conveyed a portion of it to Thomas Bacon. The rest was inherited by Zilphia Jane Williams (Defendant). The Finns (Plaintiff) bought the land belonging to Bacon. The only way for Plaintiff to get to a public road is by using a road through Defendant's land because the only other available private road was closed. Plaintiff requests an easement by necessity over Defendant's land. Rounding out easements with this easement by necessity case This is a land of strangers case: note that normally, strangers have no legal obligation to their neighbors next to them, which is why the court really harps on this The innovation the court makes here is that you can have an easement by necessity that lies dormant on a property until you need it The court though says that a right of way easement was necessarily implied based on the fact that the two parcels used to be one and then were divided off, and just because that easement had never been invoked did not mean that it was not there, just that it was dormant That is to say, despite the fact that the easement wasn't necessary before, we say that that easement always existed and is still usable now An easement by necessity is assumed because we think you wouldn't have bought it if you couldn't use it, so the easement was in line with the parties' intent here The notes of this case tell us that some courts don't even care about the original intent of the parties because it is just so important that land not be landlocked and that people not be trapped on their parcels (p. 554) What happened? Charles Williams owned a large parcel of land. He conveyed a portion of it to Thomas Bacon. The rest was inherited by Zilphia Jane Williams (Defendant). The Finns (Plaintiff) bought the land belonging to Bacon. The only way for Plaintiff to get to a public road is by using a road through Defendant's land because the only other available private road was closed. Plaintiff requests an easement by necessity over Defendant's land. Rounding out easements with this easement by necessity case This is a land of strangers case: note that normally, strangers have no legal obligation to their neighbors next to them, which is why the court really harps on this The innovation the court makes here is that you can have an easement by necessity that lies dormant on a property until you need it Here, the defendants argued that the plaintiffs had given up their easement by using a different ingress and egress in the past that had since been closed The court though says that a right of way easement was necessarily implied based on the fact that the two parcels used to be one and then were divided off, and just because that easement had never been invoked did not mean that it was not there, just that it was dormant That is to say, despite the fact that the easement wasn't necessary before, we say that that easement always existed and is still usable now Something important here is that originally the two properties were one undivided property and then the landlocked portion was sold off An easement by necessity is assumed because we think you wouldn't have bought it if you couldn't use it, so the easement was in line with the parties' intent here The notes of this case tell us that some courts don't even care about the original intent of the parties because it is just so important that land not be landlocked and that people not be trapped on their parcels

Popov v. Hiyashi

Popov and Hayashi were spectators at a baseball game in San Francisco. A ball was hit by baseball start Barry Bonds in their direction. Popov caught the ball, but dropped it after being attacked, and Hiyashi recovered it. Court here decides that BOTH Popov and Hayashi have an equal claim to the ball, and thus they order the ball to be sold and the proceeds split between them (equitable division) Rule of capture: whoever takes the ball has the ownership interest in it Here, that applies to Hayashi. He obtained the ball lawfully and now has it in his possession Pre-possessory interest → reasonableness standard: "where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion." p. 144 Popov had a pre-possessory interest in the ball. He caught it, but because he was injured by the assault and battery of the crowd members, he could not take full possession. It would be reasonable to give him a claim to the ball The court now has two interests to weigh, and the court remedies this with equitable division: when there are two claims to an object which are equally sold, the object should be split so that each party retains half the value of that object. Court is making a policy argument because wants to prevent mob violence at baseball games (social welfare/ utility) Though carefully looking at this, we think this might actually encourage mob violence because now all you have to do is get a piece of the action Also, fairness/distributive rationale: Popov has a pre-possessory interest, but Hayashi has actual corporal possession But consider a rights based argument: This is unfair to property rights; cannot force them to sell; court fails to consider idiosyncratic value

Kendall v. Ernest Pestana, Inc.

City of San Jose owns the hanger. They lease it to the Perlitches for an unspecified period. The Bixlers then sublease the hanger from them for four five year subleases. The Perliches then assign their interest to Ernest Pestana Inc. The Bixlers conducted business for 11 years, then wanted to sell the business to Kendall and the O'Haras. In order to do that, they need to assign their sublease. Pestana objects to that assignment, and their contract has a consent term. Pestana wants to exercise their ability to say no. Bixler argues this interest can only be used if it is reasonabl. Court here says that an exercise of consent must be reasonable and imply a reasonableness term to the lease condition that demands consent. A couple of reasons for this: A lease is both a conveyance and a contract With it being a conveyance there is an interest to promote alienation And in contract world, there is this duty of good faith, especially in commercial settings Then they address a bunch of objections: A lease is a conveyance of personal interest and they are under no obligation to deal with any kind of a third party. This is a transfer of property, and I don't want to deal with a third party and can give any reason I want for that Property argument: we shouldn't be forced to look to third parties The approval clause de facto is an arbitrary exclusion clause, and they could have bargained for a reasonableness clause but they didn't Pure contracting argument: don't/shouldn't imply a term not bargained for They rely on stare decisis and say that leases currently in effect are all founded upon this rule Court says weirdly that you should have seen this coming. How could you not know that this would happen eventually? You should have known the minority rule was coming and we were going to adopt it, sorry The right to realize the increased value of the property belongs to the landlord, not the lessee/tenant Pestana wants is to reserve the capital gains for themselves at least in part and doesn't want the Bixlers to be the sole profiters. They are up front about this, they say I get to do this as the lessor. Really not about not dealing with Kendall, just that they want to be the ones that get to keep the profit and not their tenants The court says no no no, the Bixlers get that We have to ask ourselves why one or the other gets that. We need some kind of justification for having it be this way, which isn't really present here.

Quality Co. v. Jacobsen Products Co.

Essentially, Qualitex is mad that someone else created and is selling dry cleaning pads that are the same green-gold color as the ones they make The question the court grapples with here is can you trademark a color? The court answers hell yea you can. A color is really no different than any of the things the courts have said you can trademark in the past "The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca-Cola Bottle), a particular sound (of NBC's three chimes), and even a particular scent (of plumeria blossoms on sewing thread). If a shape, a sound, and a fragrance can act as symbols why one might ask, can a color not do the same?" p. 182 "We do not believe, however, that color, in this respect, is special. Courts traditionally decide quite difficult questions about whether two words or phrases or symbols are sufficiently similar, in context, to confuse buyers." p. 184 Court rejects both arguments made by Jacobsen: "Shade confusion": the idea that the trademarking of colors will lead to uncertainty and unresolvable confusion and disputes about what shades of a color a competitor may lawfully use "Color scarcity": the idea that colors are limited in supply and thus should not be subject to trademark law So, is the use of a competitor's colors stealing? The court says yes Why give you trademark rights to non-functional features at all? Possession is the predominant policy justification Labor might also play in here: if someone else is free riding off of the good work that you did, we want to shut that down Similarly, under social welfare: we want people to be incentivized to build their own brands and want our law to encourage and reward that kind of investment But remember, copying induces competition, which we also think of as good for social welfare because it lowers prices overall

Pruneyard Shopping Center v. Robbins

Flip to Llyod Corp. We have a state constitutional law claim, not a federal law claim. Lloyd Corp. doesn't prevent states from setting a higher bar than they set, but if they do there may be a taking PruneYard (Appellant) is a shopping center open to the public. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, which is not directly related to its commercial purposes. High school students (Appellees) set up a table in a corner of Appellant's courtyard and distributed pamphlets in support for their opposition to a United Nations resolution against Zionism. A security guard told them to leave. Appellees seek to enjoin Appellants from denying them access to the property to circulate their petitions. Appellants content that their constitutionally established rights under the Fourteenth Amendment to exclude Appellees from adverse use of their private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a state's laws. NO taking Court found that because the mall was kind of open to the public anyways and they could still make time and manner restrictions, this wasn't a taking Owner owns: conceptually, the right to exclude. How much has been taken? Mall argues all of it, the court thinks this is only a temporary taking. And, they could exclude speaks still for reasonable things, and the mall was already open to the public anyways, which gives the court greater room to regulate. Can still regulate time, place, and manner. The right to exclude is an important stick in the bundle, but we haven't taken a ton of it H/B: not really in the opinion, maybe prevents a harm in the exclusion of people, maybe a benefit via giving first amendment rights. But really this isn't a great fit here Like in KA, p. 1211 State law: changing the law of trespass here to narrow trespass in quasi-public spaces Justice: ? Note that Blackmun agrees with all of one sentence because he believes the federal government does have the authority to define property, whereas the majority does not Background debate about the principles of state property law Federal government sets the floor They run through the three factor ad hoc test, but what goes into each factor is a little tricky: The determination of whether a state law unlawfully infringes a landowner's property in violation of the taking clause requires an examination of whether the restriction on private property forces some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole. This includes inquiring into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. The requirement that appellants permit the students to exercise their protected rights of free expression and to petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property rights under the taking clause. It will not unreasonably impair the value or use of their property as a shopping center. The shopping center may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellants have failed to show that the right to exclude others is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a taking.

Suntrust Bank .v Houghton Mifflin Co.

Houghton Mifflin has rights to a book called The Wind Done Gone (TWDG), a critique of Gone with the Wind's (GWTW) depiction of slavery and Civil-War era American South. Gone with the Wind is one of the worlds best selling books, and SunTrust Bank is the trustee of the Michelle Trust that holds the copyrights to that book. The author of TWDG, Alice Randall, in her critique of the book used several characters, plots, and major scenes in the first half of her book. SunTrust first asked Houghton to refrain from publication and they refused. So SunTrust filed a copyright action claiming the book violated the Lanham act and also sought a preliminary injunction to stop the book from publication. Schragger says this is full blown stealing The new book doesn't get written or exist or get money for it's creation at all if GWTW doesn't exist So this is 100% free riding But the court says this is not stealing The court initially looks towards the history of the copyright Three traditional goals of the copyright statute in history: To promote learning by guarding against censorship To ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired To encourage the creation of original works Additionally, the first amendment does not protect copying, so the two are crafted to work in tandem with one another and not overlap Then, they say that suntrust is entitled to relief only if they can show four things: A substantial likelihood of success on the merits A substantial threat of irreparable injury if the injunction were not issued The threatened injury outweighs the harm the injunction may cause the defendant The injunction would not do a disservice to the public interest Ultimately, the court finds that the PF elements of copyright were met, but that this work fell under the fair use exception: Four factors that may establish a fair use: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes the nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted work The court says they are not that worried about this because the two works are not really substitutes for one another Ultimately, what this case comes down to is courts having to make decisions under conditions of uncertainty and prioritizing certain value judgements in the moment

International News Service v. Associated Press

INS was blocked from obtaining the news in Europe. INS took news published by AP on bulletins & telegraphed it to the west coast so that INS and AP stories would be published at the same time in the west coast or its members could post before AP. Informative/news (facts of the world) is at issue here, not the articles or the words. Is news abandoned for anyone to claim, or is it never owned? News is res nullius: common property or something never owned. The court actually agrees with this! News takes time and labor to get, which confuses the court because they don't know how to treat it under capture Court thus says news is not property but is quasi-property Quasi-property is NOT property in the full blown sense of the entitlements that come with it It would be bad to say it was if people could assert an exclusive right to information (bad for social welfare) But it also does take investment (labor), which confers upon people some additional rights Namely, the protection against unfair competition → reasonableness! Court finds no abandonment: "Abandonment is a question of intent, and the entire organization of the Associated Press negatives such a purpose." p. 116 Brandeis dissents: Apprehensive of having a property right at all in these field (concerned about exclusivity over information) (social welfare) Copying is a good practice: it improves the product and lowers the price (social welfare) The right institution to make policy surrounding the news (public goods) is the legislature Holmes dissents also: No property in the news Really, all we should be doing here is requiring the INS to give the associated press credit for the labor that they did, and if they do not do that then they should be enjoined as the court suggests they should be (fairness/justice; labor somewhat) Notably, standards will always regulate competitive markets such as this one

International News Service v. Associated Press

INS was blocked from obtaining the news in Europe. INS took news published by AP on bulletins & telegraphed it to the west coast so that INS and AP stories would be published at the same time in the west coast or its members could post before AP. Informative/news (facts of the world) is at issue here, not the articles or the words. There is an underlying copyright claim here, but copyright law is not doing the work for the most part The point of this case is that there can be stealing in the news; the court found that reporting of the news was quasi-property and allowed for the AP to protect itself against the "stealing" of INS The court justified their decision on a labor and social welfare theory of property: we want to reward the labor that the people put into collecting and writing up the news, and we think it is good overall if we protect them against this unfair competition practice This case also has a hint of disruptive technology at work: the telegraph here is the new technology that the court is wary of

Tenhet v. Boswell

Joint tenancy w/ right of survivorship: an example of leasing powers under JT Hazel Tenhet (Plaintiff) and Raymond Johnson owned land as joint tenants. Johnson leased the property to Boswell (Defendant) for ten years without Plaintiff's knowledge or consent. Johnson died, Plaintiff then sought her right of survivorship and demanded Defendant vacate the property. The problem was she could not take that share if the lease severed her JT First, the court says that the lease does not sever the JT "It is our opinion that a lease is not so inherently inconsistent with joint tenancy as to create a severance, either temporary or permanent." p. 681 Note: we would NEVER want to say this on an exam It is just circular reasoning: the court here is asked to define the relationship between the lease and the JT, and instead they say just say that the character is not inconsistent without defining the character The court tries to tie their reasoning in with the intention of the parties, but clearly Johnson did intend to sever the tenancy by giving the lessee an option to buy at the end So really this reasoning is all crap Second, the court says that the lease does not encumber the right of survivorship Boswell, the lessee is shit out of luck and must leave, and the other JT inherits the whole parcel unencumbered Why have this? Understanding is that if the parties are under a joint tenancy, the ROS must be preserved unless there is an express intention to break it The court here also seems to suggest that a prudent lessee would have looked into this, but in the real world this seems pretty impossible So, the rule: the lease doesn't server and doesn't survive the death of the leasing co-tenant in joint tenancy situations (in this jurisdiction) Other alternative rules are also possible: The lease doesn't sever the JT but it does survive The lease severs the JT The lease pauses the JT while the lease is active Etc. Note all of these same rules could apply to mortgages as well

State v. Shack

Lawyer and health worker are convicted of trespass after a farm owner refuses to let them meet with the migrant farm workers in the migrant workers 'personal living quarters Is this a criminal law case? A property case? A contract case? It is all three! Criminal: action is brought against Shack by the state; he was arrested and convicted in municipal court of trespass Property: the right to exclude, which founds trespass, is a property entitlement Contract: unequal bargaining power in the creation of the migrant farm worker employment arrangement plays a role here Defendant has three arguments Constitutional law challenge: Defendants argue that there was a violation of their First Amendment rights by not letting them meet with the migrant farm workers Marsh v. Alabama Federal statutory challenge Defendants argue from the Supremacy Clause: trespass conviction conflicts with federal statutory law, as both SCOPE and CRLS (their respective nonprofit legal programs) are funded under federal law. State statutory challenge: Defendants turn to say statutory law to say that state statutory law does not include the right tp bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the statute The court addresses the issue of the case on the third argument only: prevents their decision from being reviewed by the SCOTUS deals specifically with the rights of migrant farm workers as opposed to the rights of lawyers. Court here says that the migrant farm workers have a right not to be isolated from services or any other provision for their wellbeing. "And we are mindful of the employer's interest in his own and in his employees' security. Hence he may reasonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. 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." p. 9 Court also considers the contracts challenge made by the plaintiff/state There is presumably a contract for the migrant worker to come work for the farmer The question is then if the right to receive visitors can be contracted away The court here says no, we don't recognize a right to contract away a group's fundamental dignitary rights (p. 27) Court there also engages in a balancing of interests as opposed to a pure right to exclude

Llyod Corp. v. Tanner

Lloyd, owner a large shopping center, have a neutral policy against handing out handbills in the mails. Respondents handed out handbills to protest the draft and the Vietnam war. The security guard told them to leave since they were trespassing. District Court - found that the policy violated the First Amendment (citing Marsh) - mall is "open to the general public" On appeal, SCOTUS distinguishes Marsh from the present case. They limit Marsh to its facts essentially and say the mall is not a company town, so Marsh doesn't control Court then invokes the state action requirement: "It must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and sassily by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only." p. 67 In sum, SCOTUS says this is private property, the First Amendment doesn't apply and there nothing we could do here and nothing that we really want to do either absent there being some kind of a statutory prohibition Marshall dissents: Pushes back on the state action requirement: the center is already open to first amendment exercise, so this is really just viewpoint discrimination more than it is protecting the right of private actors to be free from the first amendment He also makes a larger point that malls are the new downtown business districts: Malls are great places to reach a lot of people, and to keep the first amendment out of the mall is to cripple public communication Notably, history has not born out this point with the onset of social media. BUT, social media in the future may face the same challenges, and then Marshall's concerns may be warranted

Nahrstedt v. Lakeside Village Condominium Association, Inc.

Nahrstedt owned her condominium in Lakeside Village, a common interest development with 530 units. It was overseen and the covenants enforced by the Lakeside Village Condominium Association, of which Nahrstedt was also a member since she owned her condo. One of the covenants prohibited keeping any animals in any of the units. Nahrstedt allegedly was ignorant of this clause when she bought her c (p. 88) What happened? Nahrstedt owned her condominium in Lakeside Village, a common interest development with 530 units. It was overseen and the covenants enforced by the Lakeside Village Condominium Association, of which Nahrstedt was also a member since she owned her condo. One of the covenants prohibited keeping any animals in any of the units. Nahrstedt allegedly was ignorant of this clause when she bought her condo. She kept her three cats in her unit, but did not allow them to have the run of the development's common areas. Once the homeowners association found out about the pets in her home, they issued monthly fines for her violation of the covenants. She sued the homeowners association, seeking invalidation of already imposed fines and an injunction preventing future fines on this issue, and a declaration that the pet-keeping restriction was unreasonable if applied to pets kept exclusively in the home, without disturbing anyone else. Now we have this weird question where the HOA is on the rise and we are asking courts to figure out what is reasonable and what is not, and what courts aren't inclined to do with these new HOAs is become legislators for homeowners associations The reason they don't want to do that is they don't want to invite litigation about all kinds of stuff that all of these HOAs are asking people to do. So they are going to act very deferentially What is the standard the court applies? It is from a statute because statutes have sort of taken over in this arena (although they do refer back to equitable servitudes on the top of 611). The statute here jettisons the touch and concern test in favor of an unreasonableness test: if the condition is a legit servitude, then it should be enforceable "unless unreasonable" They define unreasonable as such restrictions should be enforced unless they are wholly arbitrary, violate fundamental public policy, or impose a burden on the affected land that far outweighs any benefit (p. 611) So the question to ask then is whether the restriction on cats and dogs does any of those three things That is a pretty deferential standard (looks almost like RBR), but there will be a presumption of validity to all such recorded agreements The recorded is important because people have notice. You signed up for it, so we are going to find that they are enforceable unless they are wholly arbitrary The court here finds that the policy should stand Dissent Arabian goes into a lot of detail about why pets should be allowed, as they promote health and the policy is fairly arbitrary, but Schragger isn't a fan What's the problem with judicial oversight? Litigation is expensive and we don't want to invite a ton of neighborly litigation here, so we want to stay as far out as possibleondo. She kept her three cats in her unit. Once the homeowners association found out about the pets in her home, they issued monthly fines for her violation of the covenants. She sued the homeowners association, seeking invalidation of already imposed fines and an injunction Now we have this weird question where the HOA is on the rise and we are asking courts to figure out what is reasonable and what is not, and what courts aren't inclined to do with these new HOAs is become legislators for homeowners associations The reason they don't want to do that is they don't want to invite litigation about all kinds of stuff that all of these HOAs are asking people to do. So they are going to act very deferentially What is the standard the court applies? It is from a statute because statutes have sort of taken over in this arena (although they do refer back to equitable servitudes on the top of 611). The statute here jettisons the touch and concern test in favor of an unreasonableness test: if the condition is a legit servitude, then it should be enforceable "unless unreasonable" They define unreasonable as such restrictions should be enforced unless they are wholly arbitrary, violate fundamental public policy, or impose a burden on the affected land that far outweighs any benefit (p. 611) So the question to ask then is whether the restriction on cats and dogs does any of those three things That is a pretty deferential standard (looks almost like RBR), but there will be a presumption of validity to all such recorded agreements The recorded is important because people have notice. You signed up for it, so we are going to find that they are enforceable unless they are wholly arbitrary The court here finds that the policy should stand Dissent Arabian goes into a lot of detail about why pets should be allowed, as they promote health and the policy is fairly arbitrary, but Schragger isn't a fan What's the problem with judicial oversight? Litigation is expensive and we don't want to invite a ton of neighborly litigation here, so we want to stay as far out as possible

Potting v. City of Miami

Plaintiffs filed action in December of 1988 on behalf of themselves and approximately 6,000 other homeless people living in the City of Miami. They alleged that the City of Miami had a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life—including sleeping and eating—in the public places where they are forced to live. The City had arrested thousands of homeless people under various City of Miami ordinances and Florida Statutes, and plaintiffs alleged that the city routinely seized and destroyed their property and has failed to follow its own inventory procedures regarding the seized personal property of homeless arrestees and homeless persons in general. Do people have a right to shelter, or a right to be anywhere legally? Keeping in mind the housing shortage and keeping in mind that a right only means something if we have a way to enforce it The court says that these ordinances are unconstitutional and ordered Miami to stop arresting homeless people for "innocent, harmless, and inoffensive acts" and ordered the city to establish two "'safe zones' where homeless people who have no alternative shelter can remain without being arrested for harmless conduct." p. 82 What is happening really in the court's decision? The nature of the right that the homeless have here is a right not to be arrested for innocent, harmless, and inoffensive acts like sleeping, eating, bathing, etc. in public if they don't have a private home to do those things AKA a negative right against the no camping policy While on the face the no camping policy criminalizes acts, the court here found that what this really does is criminalize the status of a person—their homelessness The opinion does not go as far as to say that we have an affirmative right to housing In fact, we have very few affirmative rights at the federal level anyways Part of this opinion is being driven by a political purpose: if you can't arrest these people and they are continuously occupying public spaces, it might force a political reckoning with the problem and the creation of shelters or somewhere else to house these people Of note here, though, there still may be no obligation to provide public spaces, so many places have instead ended up just privatizing all of their spaces or making their public spaces uninhabitable (with like spikes)

Community Feed Store, Inc. v. Northeastern Culvert Corp.

Prescriptive easement case Dispute over a gravel lot that is between two businesses, Community Feed Store and Northeastern Culvert. The lot is partly owned by each business. Feed Store uses the lot as a turnaround area for vehicles coming to Feed Store's building to pick up or drop off feed. Northeastern found out that it owned part of the lot and built a barrier in 1984. Feed Store brought an action seeking a declaratory judgment that it had a prescriptive easement over the portion of the gravel owned by Northeastern. The statutory period for a prescriptive easement in Vermont is 15 years. What is the issue here? Whether the plaintiff is entitled to a prescriptive easement What are the sub-issues here? Whether the plaintiffs failed to prove what, if any, land of the defendants was used by them Whether their land use was with the fee owner's permission On the first issue, the court says this is just silly. This is a turnabout and the plaintiffs got this basically right and that is good enough "it is clear that when a prescriptive easement is claimed, the extent of the user must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. We hold that where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue." p. 317 On the second issue, the court says that the plaintiffs prevail here as well Silence here is presumed to be non permissive This is VERY important "The general rule is that open and notorious use will be presumed to be adverse." p. 318 Then there is this tricky idea of acquiescence slipped in here The idea is that the owner may have needed to know if fact, or they may have needed to try to stop it, but we don't know really what this means or what role it plays in this case Why go for an easement here and not for AP? They don't have exclusive use of the strip, and with a prescriptive easement, courts often drop the exclusivity requirement

State v. Schmid

Provides a parallel to Marsh but at the state level But this is limited to a NJ holding; other states and SCOTUS are not bound by this decision. (p. 27) Princeton University; the SCONJ held the individuals had a right to express their views, balancing individual rights against property rights of the private actor Rejects the state action requirement (limited in scope to only NJ) This is like Marsh!

Marsh v. Alabama

Provides a precedential basis in this case and many others In that case, there was a town that was privately owned by a singular company, and that town kicked out Jehovah's Witnesses. That group challenged their expulsion in court, and the state countered by saying this was private action and thus outside of the scope of the First Amendment SCOTUS held that this was a First Amendment violation despite the town being privately owned because the place looked and acted like any other public municipality, and the First Amendment was so important that that interest took over in the borderline case

Asbury v. Brougham

Rosalyn Asbury (Plaintiff), a black woman, went to an apartment complex and tried to rent an apartment. The manager of Broughham Estates (Defendant) told her there were no vacancies and that she did not keep a waiting list. Defendant would not let her fill out an application or view model units, but suggested that she look at a complex that housed mostly black families. Plaintiff's income was sufficient to pay rent on Defendant's apartment. When white customers inquired about units, they were told that units were available. Defendant rented units to whites after Plaintiff was told nothing was available. Plaintiff brought suit under the Act, which prohibits discrimination on the basis of race. Straight up application of the FHA The McDonnell Douglas Burden Shifting Doctrine: Plaintiff must come forward with PF case of discrimination D must then produce evidence that the refusal to rent or negotiate for a rental was motivated by legitimate, non-racial considerations P must show that the proffered reasons were pretextual, or a lie or not quite accurate How do we make the PF case? 4 things: Plaintiff must prove she is minority She applied for and was qualified to rent an apartment She was denied the opportunity The housing opportunity remained available Plaintiff in this case proves all 4 things Now defendant must respond. What does Brougham say? Children can't be in the apartments, and other excuses and reasons etc. on 1034 into 1035 Asbury then shows that these are pretextual: She produces evidence that these restrictions had not applied to other people. She got these through the computer data sheets, which she would have gotten in discovery after discovery a 12b6 motion but at that point may have been too late. The big thing that she has that most tenants and home buyers don't have is her white sister in law inquiring about an apartment the next day (a tester, Linda Robinson) This should look familiar like from our doctors office case where they filmed. She is not a trespasser! We don't know why, we just know that she wouldn't be even though this is consent procured by fraud And then she hires a lawyer to pursue this case, which is expensive, and it makes it all the way up to the tenth circuit, which is really expensive This should be an open and shut case, but it doesn't seem to be since it gets so far up on appeal Defendant has one good argument, and it is important to highlight this because the question of intentional discrimination asks us what actually motivates the discrimination There is a large minority population already living at the place, which he argues conclusively rebuts the claim of racial discrimination. He says that he can't be discriminating based on race because other people of the same minority population live here and I haven't turned them away The court answers this by saying that this evidence is not dispositive. It's good evidence, but it doesn't tell the whole story, and also because this is a sufficiency of the evidence claim, we give some credence to the decision of the jury and there was enough evidence for the jury to find otherwise Could we tell a story that this is discrimination even despite the high population of black people here? You might tell a story where they are concerned about crossing a threshold where too many black people live there that white tenants will then flee if it gets too integrated This case is really a disparate treatment case. (10)What is a disparate impact case? Facially neutral policy that results in a disparate impact on minority groups, like putting the low income housing in a certain neighborhood

Feist Publications, Inc. v. Rural Telephone Service Co.

Rural Telephone Service (Rural) (plaintiff) published a phonebook which lists the names of its subscribers alphabetically in its white pages. Feist Publications (Feist) (defendant) distributed a similar phonebook although covering a larger geographical area. Rural obtained the information for its white pages directly from its subscribers. In order to obtain its white pages listings, Feist contacted Rural and other phone companies offering to pay to use their white pages listings. Rural denied Feist permission to use its listings because the two companies compete for advertising revenue. However, Feist used Rural's listings anyway, without its permission. When Rural found out, it sued Feist for copyright infringement. Kind of just about social welfare and a straight utilitarian calculus: originality as opposed to labor does the work Everyone here agrees that this is de facto stealing because Rural included fictitious listings in their book and Feist copied even the fake listings over to their book But the court here finds that this is not stealing. Why? Copyright protects originality, not facts or ideas (the fact/expression dichotomy). Only the arrangement might be because the arrangement would be what, if anything, showed creativity The court expressly rejects the labor doctrine, as the focus of copyright law going back to the constitution was on expression or originality. So, no protectable labor interest. We must pass a bare bar of creativity Here, the arrangement of the phone numbers alphabetically does not pass the creativity bar; in many ways, it is obvious and "nearly inevitable" How do we square this away with the decision in INS? Maybe one is more important (news) and more expressive (news), and we just don't give a shit about the other (phonebook) Maybe it could be the inevitability of the result: We measure creativity in cases over facts/fact organizing and whether there is enough creativity to pass the bar of stealing by measuring probability that the product turns out looking completely different when there is stealing vs when there is not stealing. In INS, I think the probability that the product comes out looking different if there is no stealing is high. In Feist, I think the probability that the product comes out looking different if there is no stealing is low. Therefore, one passes the creativity/copyright bar and the other one doesn't (p. 189) What happened? Rural Telephone Service (Rural) (plaintiff) published a phonebook which lists the names of its subscribers alphabetically in its white pages. Feist Publications (Feist) (defendant) distributed a similar phonebook although covering a larger geographical area. Rural obtained the information for its white pages directly from its subscribers. In order to obtain its white pages listings, Feist contacted Rural and other phone companies offering to pay to use their white pages listings. Rural denied Feist permission to use its listings because the two companies compete for advertising revenue. However, Feist used Rural's listings anyway, without its permission. When Rural found out, it sued Feist for copyright infringement. Everyone here agrees that this is de facto stealing because Rural included fictitious listings in their book and Feist copied even the fake listings over to their book But the court here finds that this is not stealing. Why? What is the doctrinal move? Copyright protects originality, not facts or ideas (the fact/expression dichotomy) Of course the facts of people's names and numbers are not copyrightable, only the arrangement might be because the arrangement would be what, if anything, showed creativity The court expressly rejects the labor doctrine then, as the focus of copyright law going back to the constitution was on expression or originality. So, no protectable labor interest. We must pass a bare bar of creativity Here, the arrangement of the phone numbers alphabetically does not pass the creativity bar; in many ways, it is obvious and "nearly inevitable" Is this fair to Rural? Definitely not How do we square this away with the decision in INS? These are both fact cases, but one gives a protection and the other one doesn't The court here doesn't even mention INS, which is odd Policy: will the activity still happen without the monopoly protection? In INS, the answer was no. Here, we don't know, but Rural has to do it as part of the monopoly in their area, and we may want to encourage them to do it too So really, this seems like it comes out the same as INS Maybe one is more important (news) and more expressive (news), and we just don't give a shit about the other (phonebook) Maybe it could be the inevitability of the result: We measure creativity in cases over facts/fact organizing and whether there is enough creativity to pass the bar of stealing by measuring probability that the product turns out looking completely different when there is stealing vs when there is not stealing. In INS, I think the probability that the product comes out looking different if there is no stealing is high. In Feist, I think the probability that the product comes out looking different if there is no stealing is low. Therefore, one passes the creativity/copyright bar and the other one doesn't So which way do we go? Probably depends in large part on whether we not we want the industry to keep going

Nome 2000 v. Fagerstrom

Squatter case So we have the big bad mining company trying to take the land of the Alaska natives, who have established features there which suggest they adversely possessed the land The Fagerstroms win this case, but it is close Everybody agrees that when they put the cabin on the land in 1978, that they adversely possessed that parcel or at least met all of the requirements for adverse possession But the lawsuit is filed in 1987, and the statutory period in Alaska is 10 years. So they need to get to 1988 The only dispute here is about them falling short by about 6 months or whatever it is of for sure establishing all of the elements What is the claim that they have possessed it for the statutory period? What evidence do they put on to show that these elements were met prior to '78? They tell a story: first, they put up posts around the borders of this land as a signal that they owned it. Then, they have been picking up litter and gathering berries and some other stuff. They have also been visiting the property during the warmer months and recreating there by fishing and such, placing a trailer there in 77: bringing the camping gear/mobile home/reindeer pen, they kicked people off (acting as a true owner would), planted trees that were non-native, established an outhouse, and on and on They were only here in the summers though, which might be a problem for continuous even though they did come every year The court on continuity says it doesn't has to be totally continuous, it just has to be used consistent with how others would use it, and since this is land in Alaska that is really only good in the summers anyways, the fact that they were coming and using the land every summer is enough Definitely adverse because they didn't receive permission, and the court here on intent? Do they care? We know the Fagerstroms knew how to get an allotment, which kind of suggests that they knew they were squatting on land. But the court says it doesn't matter. They just want to see a squatter acting like an owner here. "Whether the Fagerstroms believed or intended has nothing to do with the question of whether their possession was hostile. Hostility is instead determined by an objective test, which simply asks whether the possessor 'acted toward the land as if he owned it,' without permission of one with legal authority to give possession." P. 308 Is this the right decision? What is the justification for allowing people like the Faegerstroms to take the land from the rightful owners? The elements of adverse possession track the justifications, so if you meet the elements then we think labor, possession, and settled expectations are going to favor you Social welfare might be even more different in this case than it even normally is because of the natural resources under the ground Here, the Fagerstroms would get the oil if they are granted the property, and maybe that is a huge windfall for them Do we want mining of it? Is social welfare telling us to get the oil out or leave the oil undisturbed? AP is pro development because it requires you to use the land, but with environmental concerns and everything maybe we want the land to remain undisturbed and not be developed Law requires at a minimum that you show up to protect your interest at least every so often by binging a lawsuit in a timely fashion (whatever your state defines as timely) Rights conception kicks in as a concept of dignity, autonomy, or idiosyncratic interest in that land. You somehow have established roots, and that gives you a kind of personal stake in this land that we really do not want to disturb

Sawed v. Endo

Tenancy by the Entirety: an example of modernizing TBTE doctrine What happened? Mrs. Sawada was injured after being hit by a car driven by Mr. Endo, one of the Defendants. By deed dated prior to the accident, but recorded after the accident, the Defendants Mr. and Mrs. Endo conveyed their real property—their house—to their sons for no consideration. Plaintiff sued defendant for the accident and received a damages judgement against him, and the Plaintiff sued to set aside the conveyance of the Defendants' property. The trial court refused to set aside the conveyance and the Plaintiff appealed. Here, it is only fraud if the Sawadas could get to the Endo's property in the first place The court rules that the Sawadas could never get to the property because it was held in TBTE. Under TBTE, the creditors of one owner in a TBTE cannot attach to a single owner's joint share in the property Why hold this way? The Married Women's Property Acts equalizes the rights of men and women under property law Here, the court chooses to interpret that as equally disabling them both from acting unilaterally and protecting them both from each other's creditors Additionally, from a public policy perspective, a family owning real property is the most valuable asset, so to allow creditors to get at that asset would undermine the whole family unit Notice that there are many different ways this rule could have been set up: No attachments of TBTE property You can attach the right of survivorship from the TBTE You can attach the TBTE during the time while both are alive, subject to the possibility that the spouse not in debt [different options p. 685-686] The last three are all weird, but we have this because you might want to be able to enable both parties to attach in certain circumstances Kidwell dissent here: The MWPA is designed to bring women up to the level of men in the modern era, not bring both down to the level of the common law doctrine "The majority reaches its conclusion by holding that the effect of the [MWPA] 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 wife's right of alienation of her interest to place it on a position of equality with the husband's." p. 688 Seems to think husband had a right or entitlement to be pursued but creditors, and he thinks equality here requires enable both of them rather than disabling both. Take a view on this!

Olivas v. Olivas

Tenancy in Common: case is an example of ouster doctrine The two married people had a house where they were tenants in common, which then became the subject in their divorce. After separation, Caroline the wife remained in possession of the house and the Husband brought an action for rent claiming that he was ousted from the house. The background rule again is that you don't get rent from the tenant in possession because once again you have a right to be there too, and the fact that you are there is not their problem. Husband argues that he was ousted, falling into the exception. The court says no you really weren't ousted. Ouster has to be some kind of affirmative physical act or the realities of the situation prevent them from sharing co-occupancy (constructive ouster). Physical act: "ouster suggests an affirmative physical act, even a reprehensible act" p. 674 Constructive: "the realities of the situation, without there being any fault by either co-tenant, prevent the co-tenants from sharing occupancy" p. 674; "the impracticality of join occupancy...may result from relations...becoming 'so strained and bitter that they could not continue to reside together in peace and concord." p. 675 What they do say is that Sam effectively abandoned the dwelling "He was not pushed out, but pulled." p. 675. Court thinks that he went to live with a girlfriend and abandoned the family, so they are really skeptical of him and not going to give him rent The rule in NM: you can have a constructive ouster situation in a divorce or marital dispute, but we are not going to say it is always the case. We will adjudicate on a case by case basis, and you have to prove constructive ouster. We are not sure what would make this constructive ouster Sam then has a right to move back in after this. He probably won't, but he could. Would he be allowed to bring his girlfriend to live in the house with his ex wife? If you are tenants in common, yes, you can bring in anyone that you want even if you don't have the consent of the other owners. You get to use it as an owner would If the co-tenant is upset with you for using the property in any kind of way (such as bringing your spouse in), their remedy is partitioning (aka the equivalent of divorce for people that aren't married in property). Partition requires that either you physically divide the property, or you sell the property and split the proceeds. It is the only remedy (p. 673) Tenancy in Common: example of ouster doctrine Starting to see marital property as a kind of central example of joint ownership, and certainly it is the most common that married people own things together What happened? This is a divorce case. The two married people had a house where they were tenants in common, which then became the subject in their divorce. After separation, Caroline the wife remained in possession of the house and the Husband brought an action for rent claiming that he was ousted from the house. The background rule again is that you don't get rent from the tenant in possession because once again you have a right to be there too, and the fact that you are there is not their problem What is his argument then? He claims that he was ousted (at least constructively), entitling him to rent The court says no you really weren't ousted. Ouster has to be some kind of affirmative physical act or the realities of the situation prevent them from sharing co-occupancy (constructive ouster). Physical act: "ouster suggests an affirmative physical act, even a reprehensible act" p. 674 Constructive: "the realities of the situation, without there being any fault by either co-tenant, prevent the co-tenants from sharing occupancy" p. 674; "the impracticality of join occupancy...may result from relations...becoming 'so strained and bitter that they could not continue to reside together in peace and concord." p. 675 No evidence that Carolina threw him out or changed the locks Sam wants the NM court to adopt the doctrine of constructive ouster in divorce cases. Does the court do that? No. What they do say is that Sam effectively abandoned the dwelling "He was not pushed out, but pulled." p. 675. Court thinks that he went to live with a girlfriend and abandoned the family, so they are really skeptical of him and not going to give him rent The rule in NM: you can have a constructive ouster situation in a divorce or marital dispute, but we are not going to say it is always the case. We will adjudicate on a case by case basis, and you have to prove constructive ouster. We are not sure what would make this constructive ouster Sam then has a right to move back in after this. He probably won't, but he could. Would he be allowed to bring his girlfriend to live in the house with his ex wife? If you are tenants in common, yes, you can bring in anyone that you want even if you don't have the consent of the other owners. You get to use it as an owner would If the co-tenant is upset with you for using the property in any kind of way (such as bringing your spouse in), their remedy is partitioning (aka the equivalent of divorce for people that aren't married in property). When you have joint owners and you can't work it out, your only legal remedy is to sue for partition. Partition requires that either you can physically divide the property, or you sell the property and give the proceeds to each party

Carr v. Deking

Tenancy in common: case is an example of partition Joel Carr (Plaintiff) and his father George Carr owned a parcel of land as tenants in common. They leased the land to Richard Deking (Defendant) on a year-to-year oral agreement over several years. One year, Plaintiff informed Defendant that he wanted cash rent instead, but Defendant did not agree. Defendant then went to George Carr and negotiated instead a ten-year lease, unknown to Plaintiff. Plaintiff never consented to the lease and did not authorize his father to act on his behalf. Plaintiff sought to eject Defendant; Defendant seeks partition. Court here says sorry, there is really nothing we can do! As a tenant in common, George has a unilateral right to sell or lease his property however he sees fit Here, is Joel bound by the Deking/George agreement? Not really! The court says you can either reap the benefit of the lease, or you can sue for partition Partition here is the unideal solution though because you don't only want to have access to half the farm as opposed to the whole Why adopt this rule? People get to do their own thing and don't need consent to do it, so it maximizes autonomy You always have the option to opt into a more binding personal arrangement by entering into/creating a JT under the 4 unities, avoiding this whole debacle This case is just a good example of how the rule works and how it might lead to some injustice but with good reasoning

Javins v. First National Realty Corp

Tenants (Appellants) at a housing complex did not pay their rent for one month. The landlord, First National Realty Corp. (Appellee), sought possession based on the default. Appellants admitted they had not paid rent but alleged numerous violations of statutory housing regulations as a defense. This is the first case to put forth an implied warranty with attached liability and give tenants their own private right of action based on the housing code. Prior, they could not withhold rent and they could only complain to the housing board The court made this term mandatory, or non-disclaimable Under this new term, they allowed tenants to withhold rent or use the warranty to defend against eviction actions for not paying rent What are the justifications? We are no longer an agrarian society with an interest only in the land below our housing; now, housing is a service Today's city-dweller usually has a single, specialized skill unrelated to maintenance work and is unable to make the repairs like the old jack of all trades farmer was in the common law model of the lessee Urban tenants today are more mobile than ever before and don't remain on one piece of land for their entire lives, so they don't have an incentive to invest in the land Structures today are much more difficult to repair, and in multi-unit residences, tenants may not be able to even obtain access to make repairs Housing is a critically important feature of our rights, and we want to make standard housing available for all people We want to avoid having contracts of adhesion and even out the impacts of unequal bargaining power in residential tenancies Landlords are the cheapest cost avoider and best positioned to make the repairs, especially because they are already bound by the housing codes We are concerned about some third party harms, like harms to children, that come from raising families in rented areas Most courts now hold that there is a warranty of habitability in commercial leases Should the same be true of a duty to repair in commercial contexts? We want to look at the justifications given above and decide if the same justifications would make sense in a commercial context

Minjak Co. v. Randolph

Tenants here signed a commercial lease with their landlord, though they used 2/3 of the loft space as a music studio and 1/3 as residential space for the two of them to live. However, through a series of issues with water leaks, sand, dust, dangerous stairwells, closing an elevator, falling bricks and debris, etc. the apartment becomes virtually unlivable. Despite all of this, the tenants don't leave, but instead they stop paying rent. The landlord then sued them for nonpayment, and the tenants brought the defense that they were entitled to a rent abatement under the COQE. The issue here is that the defendants didn't leave. Under the doctrine of constructive eviction, you only count if your premises becomes entirely uninhabitable, and the fact that they were able and did in fact stay would traditionally have eviscerated that defense Court thus has to adopt a new rule for tenants who don't leave: The court relies on East Haven Associates v. Gurian and allows for a defense of partial constructive eviction after considering fairness and social policy "We agree with the holding and reasoning of [East Haven] that a tenant may assert as a defense to the nonpayment of rent the doctrine of constructive eviction, even if he or she has abandoned only a portion of the demised premises due to the landlord's acts in making that portion of the premises unusable by the tenant. Indeed "compelling considerations of social policy and fairness dictate such a result." p. 867 Why? What is the policy underlying this decision? We don't want to force people to leave before they can defend themselves, especially when we have a residential housing shortage Gurian (p. 870) is residential and articulates this reasoning in their decision: "It makes no sense at all to say that if part of an apartment has been rendered uninhabitable, a family member must move from the entire dwelling before it can seek justice and fair dealing." Would this be the same in the commercial setting? We could make the argument here that the Minjak court is already applying this commercially because this was a majority commercial lease already But we can certainly make the argument from both sides: Commercial: doesn't have the same policy-backed push around housing shortages, being ousted and homeless and a right to be anywhere, etc. Commercial businesses in a commercial setting should be more robust than a familial housing situation Also, we may want to have a commercial business move so that new businesses could move in On the flip side, though, we don't want landlords of any kind to try to force a tenant out to get a better deal, which the traditional rule encourages Note that under the court's new rule, punitive damages are also possible if the landlord's actions or inactions are intentional or malicious Court does not want to give landlords the leverage to force tenants to leave

Elliff v. Texon Drilling Co.

Texon drilled on Driscoll's land using the wrong mud, causing the well to crater and explode and destroying Elliff's chance at using the well TX ownership requires both absolute ownership and capture, which conflicts with one another in these circumstances Absolute ownership can't be true because the oil is migrating: capturing through wells what is on someone else's land isn't stealing like with other goods The court posits correlative rights to the common pool of resources: "Each landowner should be afforded the opportunity to produce his fair share of the recoverable oil and gas beneath his land, which is but another way of recognizing the existence of correlative rights between the various landowners over a common reservoir of oil or gas." p. 149 The court has to remedy unfairness created by that rule with a standard: You must act reasonably with regard to the value of the common pool of oil. Negligence will be grounds for awarding compensation back to the owner that did not capture Justifications Social welfare: if we want the oil out, we want the capture rule. But this may invite lawlessness. Additionally, we don't want the oil wasted, so this does seem like the right rule Labor: unsure where this points; likely to the law of capture because it rewards those who are using the resources rather than sitting on it idly Possession: Texon here had possession, and this would tell us that the rule of capture should have been adopted and the court got it right Rights: N/A; no idiosyncratic value to take into consideration Distributive justice: N/A; no richer or poorer parties relevant to this

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.

The Fontainebleau Hotel began constructing a fourteen-story addition to the hotel. The Eden Roc Hotel is next to the Fontainebleau. When the new addition was complete, there would be a shadow of the addition over the cabana, swimming pool, and the sunbathing area of the Eden Roc during the winter. The Eden Roc is attempted to enjoin the construction because they claimed the addition would interfere with the light and air on the beach in front of the Eden Roc and cast a shadow that will render the beach unusable. This is the MAJORITY RULE on light and air in the US The court says that there is no right to light and air, and by that fact, any interference with the light and air of a property cannot be a nuisance that gives rise to a cause of action Per se rule Where is the bizarre reasoning here? "This is indeed a novel application of the maxim sic utere tuo ut alienum non laedas. This maxim does not mean that one must never use his own property in such a way as to do injury to his neighbor. It means only that one must use his property so as to not injure the lawful rights of another." RS: this is the dumbest sentence because it adds the word rights in and jut turns the whole inquiry into circular reasoning If it is not unlawful, then it is not unlawful. But the court is supposed to be deciding what is lawful! Also, if nuisance is a reasonable use doctrine, how can we ever have per se rules (like for light and air)? But here, the court says no air and light protections per se, sorry goodbye If the reasoning weren't enough, we know this to be untrue because of spite fences: court's recognize that fences erected out of spite that block light and air constitute a nuisance This is partially a rejection of the ancient lights doctrine in the US: you have no right to a prescriptive easement on light and air that you have experienced for a long time

Green v. Lupo

The Greens sold a northern tract of their land to the Lupos on condition that the Lupos give the Greens an easement to the southernmost 30 feet of their purchased plot for ingress and egress and for road/utility purposes. The parties executed the easement writing, but it did not specify whether it was to be appurtenant or in gross. The Greens then divide their property into mobile home parcels, and the youngsters who move in cause problems by riding their motorcycles through the easement. Perturbed by the motorcycle riding, the Lupos refused to grant the easement to all of the mobile home parcels, alleging that the easement was only for the Greens's use. What does it mean to be in gross or appurtenant? This is an unremarkable case that tells us that. We want to know if the easement is personal/in gross—so as to apply only to the Greens—or appurtenant—so as to run with the land The easement language in the deed itself is ambiguous, so the court allows parol evidence in to illuminate the parties' intent The default in ambiguous cases is to presume the easement is appurtenant Why have this rule? It prevents you from just handing out a bunch of personal easements to people everywhere Appurtenant easements are easier to see and make court decisions around How would you make an easement personal clearly? Just say in the easement contracting language that it is intended to be personal or in gross! And this works the same the other way: if you want it to be appurtenant or run with the land, just say that too! So to recap: The default is that easements will be presumed to be appurtenant if the language in the grant is ambiguous, but courts will also look to parol evidence to try to discern the original parties' intent. Additionally, any equitable kind of restrictions on the easement has to be designed so that these parties can still enjoy the easement.

Pennsylvania Coal Co. v. Mahon

The Kohler Act prohibited mining that would cause subsidence of homes and surfaces near residential properties. The Pennsylvania Coal Co. had relied in contract and deeds to retain the valuable estate in the land beneath the surface. The property owners sought to enjoin the Pennsylvania Coal Co. from mining beneath their homes. The trial court found that the Pennsylvania Coal Co.'s mining would cause the subsidence damage and danger prohibited by the Kohler Act and sought prevention by injunction. The subsurface estate could not be valuably mined for profit and still support the surface above. The owner had consented to the deed with the express reservation of the coal rights. As such the deed gave Pennsylvania Coal Co. both contract and property rights which the Kohler Act rendered useless. YES taking Court said that the act regulating the mining required compensation to the mining companies that owned these support estates Note that this is not a dead test case that has been overturned Owners owned: according to Holmes, they owned the rights to the coal underground, and 100% of this was taken because the coal under the house is a separate common law support estate sold to them by the owners Conceptual severance question: can we look at just the coal in this one small estate, or should it be the small proportion of their overall coal lot? Brandeis pushes back here and say they own nothing (can't harm the houses) plus this is really like 1% of their overall coal haul H/B: ? State law: Holmes says the state law created a support estate and then the law took that support estate. Brandeis pushes back and says no this is really just nuisance law Justice: Holmes says this is an individualized burden being born out by the coal mining company Brandeis says no and echoes Miller, saying sometimes you win and sometimes you lose but we will defer to regulation for the good of civilization

Sommer v. Kridel

The saddest case in the casebook :( The Defendant, Kridel (a law student) signed a two-year lease for an apartment and paid the security deposit and first month's rent. But before even obtaining the keys to the apartment, the Defendant had his engagement broken off, and because he had no funds to support himself and was a studen. The Plaintiff never answered Kridel's letter and did not attempt to re-let the apartment until months later, even though a suitable buyer approached him about letting the space. Plaintiff sued the Defendant for the full amount due under the two-year lease The prior doctrine here is that there is no duty to mitigate The court here though wants to change that rule to recognize more of the contractual nature of landlord-tenant property (and in fact took this case precisely to change the law) "Yet the distinction between a lease for ordinary residential purposes and an ordinary contract can no longer be considered viable." p. 858 Under the new rule, the landlord has a duty to mitigate by essentially treating the property as vacant. He can collect damages in search costs and the difference between the two rental prices if renting for less What are the policy justifications for the new rule? We don't want vacancies—both because of housing shortages and because it undermines the concept of efficient breach, which we like and supports alienability Landlords can build the risk of breach terminating the lease into the agreement, either by requiring a security deposit or putting liquidated damages/penalties into the contract

Miller v. Schoene

The state entomologist (Defendant) ordered Plaintiffs to cut down a large number of ornamental red cedar trees growing on their property, in order to prevent the spread of a rust or plant disease to the apple orchards in the vicinity. A statute requires the state entomologist to discover infected trees and direct the owner to destroy them. NO taking Court allowed for the ordinance against cedar trees to stand without compensation Owner owns: nothing, no right to engage in a nuisance H/B: court thinks prevents a harm State law: court doesn't care here, we aren't going to explore the niceties of nuisance law Justice: state can choose which thing to protect and that is perfectly ok. We might see this as an individualized burden to the cedar growers in the alternative

Hidden Harbor Estates v. Basso

This case is cited in all of the modern restrictive covenant cases it seems It is an early case that comes from FL, where there are a ton of retirement communities all with HOAs and essentially privatized municipal governments The court here sets forth two different categories of restrictions on restrictive covenants: When use restrictions are set forth in the declaration or master deed of the community association: strongly presumed to be valid and should be struck down only if the restrictions are arbitrary or in violation of public policy or some constitutional right. Highly deferential—you need more than a minor degree of unreasonableness to pass this bar Presumed reasonable because they are thought to provide notice pre-bargaining before you go and buy But it only makes sense if you have options and options to buy in other places When rules/restrictions are promulgated by the governing board of the community association, or when the community reinterprets a rule: subject to a "reasonableness" test so as to somewhat limit or "fetter" the discretion of the board (p. 88) This case is cited in all of the modern restrictive covenant cases it seems It is an early case that comes from FL, where there are a ton of retirement communities all with HOAs and essentially privatized municipal governments The court here sets forth two different categories of restrictions on restrictive covenants: When use restrictions are set forth in the declaration or master deed of the community association: strongly presumed to be valid and should be struck down only if the restrictions are arbitrary or in violation of public policy or some constitutional right. Highly deferential—you need more than a minor degree of unreasonableness to pass this bar Presumed reasonable because they are thought to provide notice pre-bargaining before you go and buy But it only makes sense if you have options and options to buy in other places When rules/restrictions are promulgated by the governing board of the community association, or when the community reinterprets a rule: subject to a "reasonableness" test so as to somewhat limit or "fetter" the discretion of the board

Neuman v. Grandview at Emerald Hills, Inc.

This is a dispute over a prohibition on having religious services in the auditorium Court here cites Norman and looks to the FL statute and says that the board can adopt reasonable restrictions so long as they do not unreasonably burden the right to peaceably assemble Notice the political policy language as well: "no entity or entities shall unreasonably restrict any unit owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak..." The state can ALWAYS come in and override CCRs (covenants, conditions, and restrictions) via statute The court here says that this is not unreasonable because there are still other ways to assemble. The restriction, rather, is about religion, not assembly. Additionally, it is inherent that some people in a condominium complex have to give things up (strong right association like in roommates.com) and here there is a majority owners rule (with voting tied to ownership/property-based voting qualification distributed by share), and so this is reasonable. Why is this not a violation of the First Amendment, as they argued? Private action instead of state action here (though put a pin in this and how the judge's choice to uphold this covenant is state action)

Edwards v. Bradley

Viva Lilliston dies and leaves a pretty well-written will in which she leaves the farm to Margaret Jones on the condition that she can't sell it, no creditors can reach it, she can't put it up for collateral, or anything else. If that is condition is breached, then it goes to the grandchildren. Jones then says to the grandkids that she would like to sell this farm, and she gets the agreement of every one of her children but Beverly. Jones passes, and Beverly now sues so she can get her piece of the estate that she rightfully deserves. Court decides or interprets this as a life estate Can't be any of the fee simples because there just is a rule that any condition entirely prohibiting the alienation of a piece of property is void. You would just cross out that language in that grant if it were those things Instead the court says you want to understand the will through the intent of the person who wrote it, so they want to think of it so that condition stays valid. Here, life estates are the way to do it because you can put a limitation on alienation and forfeiture "The intention of the testatrix is to be upheld if the will can be reasonably construed to effectuate such intent and if it is not inconsistent with an established rule of law. In addition, the language of the will is 'to be understood in the sense in which the circumstances of the case show that the testatrix intended." (p. 758) What happened? Viva Lilliston dies and leaves a pretty well-written will in which she leaves the farm to Margaret Jones on the condition that she can't sell it, no creditors can reach it, she can't put it up for collateral, or anything else. If that is condition is breached, then it goes to the grandchildren She is doing this because Margaret is not responsible with money and she is trying to protect the estate. Jones then says to the grandkids that she would like to sell this farm, and she gets the agreement of every one of her children but Beverly. Beverly as a result is not popular with either the mom or the other kids—when mom dies, she only gets $1 in the will. Beverly now sues to enforce the will of her grandmother so she can get her piece of the estate that she rightfully deserves. What are the arguments here? The majority of the kids say that what VIVA effectively created is an FSD, and Margaret Jones did not violate that in her lifetime, so then she could do whatever she wanted with it Court thinks that is a little weird because what they are essentially arguing is that on her death it becomes a fee simple absolute Beverly argues that this was a life estate with a third party grantee in which she is entitled to her share of the estate upon the death of her mother. Court decides or interprets this as a life estate Cant be a FSA, can't be a FSD, can't be a FSSCS, and can't be a FSSEL. Why? Can't be any of the fee simples because there just is a rule that any condition entirely prohibiting the alienation of a piece of property is void. You would just cross out that language in that grant if it were those things Instead the court says you want to understand the will through the intent of the person who wrote it, so they want to think of it so that condition stays valid. Here, life estates are the way to do it because you can put a limitation on alienation and forfeiture Why have this? The interest only lasts for the lifetime of Margaret, so there are not the same longstanding conditions Court says that because we decide Viva had a certain kind of intent and restrict the land, we will interpret her grant as a thing that is possible under the common law, a life estate, and then we can interpret the grant as going to all of the grandchildren in fee simple absolute. "The intention of the testatrix is to be upheld if the will can be reasonably construed to effectuate such intent and if it is not inconsistent with an established rule of law. In addition, the language of the will is 'to be understood in the sense in which the circumstances of the case show that the testatrix intended. ... Here, the testatrix intended that Jones have the use and benefit of the real estate free of the claims of here creditors. The ultimate beneficiaries were Jones's children." This means that Margaret could not disown Beverly. Beverly now wins!

3000 B.C. v. Bowman Properties Ltd.

We have a spa that has leased their current rental space for 12 years. The landlord of the building then leased the upstairs space above the spa to the Hair Cuttery, which was loud with the sound of children playing while waiting to get their hair cut. There was also construction going on outside.As it turns out, the Hair Cuttery and the construction makes it too loud for the spa to stay, and so they caveated the premised and moved into a new space Here, the spa represents an eggshell plaintiff This is also different from the Minjak case because they actually leave the premises, so under the common law, they definitively qualify for a constructive eviction case What makes this case important for our purposes is that here, the landlord is not the one doing the construction or making the noise above the spa. This raises the question of how much responsibility the landlord bears for other tenants (especially when the only remedy is eviction, in which case you would be liable to a different tenant!) The court thinks the remedy here is that the landlord should know the standard and should only rent to other tenants that are compatible with the environment they have created, and thus they should be the ones on the hook This raises a question of foreseeability though—the Hair Cuttery is not so obviously incompatible that the landlord may not have chosen to rent to them The decision here is thus an expansion of the COQE because now the landlord can be liable for violations caused by third party actions (p. 868) What happened? We have a spa that has leased their current rental space for 12 years. The landlord of the building then leased the upstairs space above the spa to the Hair Cuttery, which was loud with the sound of children playing while waiting to get their hair cut. There was also construction going on outside. As it turns out, the Hair Cuttery and the construction makes it too loud for the spa to stay, and so they caveated the premised and moved into a new space They then brought suit for constructive eviction Here, the spa represents an eggshell plaintiff This is also different from the Minjak case because they actually leave the premises, so under the common law, they definitively qualify for a constructive eviction case What makes this case different and important for our purposes is that here, the landlord is not the one doing the construction or making the noise above the spa. This raises the question of how much responsibility the landlord bears for other tenants (especially when the only remedy is eviction, in which case you would be liable to a different tenant!) The court thinks the remedy here is that the landlord should know the standard and should only rent to other tenants that are compatible with the environment they have created, and thus they should be the ones on the hook This raises a question of foreseeability though—the Hair Cuttery is not so obviously incompatible that the landlord may not have chosen to rent to them The decision here is thus an expansion of the COQE because now the landlord can be liable for violations caused by third party actions The court awards damages to 3000 BC after they left

Shack, Schmidt, Uston and Matthews

are all NJ courts that have a minority rule of reasonable access. It is an outlier. Note that the majority of other states still have a common law rule of arbitrary exclusion subject only to the checks of statutes like the Civil Rights Acts, and thus they would likely come to the opposite conclusion in all of those cases

Wood v. Board of Country Commissioners of Fremont County

ecil and Edna Wood conveyed land to Fremont County by warranty deed which specified that construction of a hospital on that site as a memorial was necessary. The county built a hospital and operated it. They then sold the hospital to a private company, that later moved the operation and put the premises up for sale. The Woods now contend that the language of the deed created either a FSD or a FSSCS with a right of reversion if the land ceased to be used as a hospital, and they seek to have ownership of the land transferred back to them. The hospital/county says that this is a fee simple absolute because the magic words were not present Lower court says that they created a FSA, and the appeal agrees: "The plain language in the 1948 deed, stating that appellants conveyed the land to Fremont country hospital, does not clearly state that the estate conveyed will expire automatically if the land is nit sued for a state purpose. As such, it does not evidence an intent of the grants to convey a fee simple determinable, and we hold that no fee simple determinable was created when the land was conveyed." p. 757 "We hold that the plain language of the 1948 warranty deed, whule articulating that the land conveyed was to be used for a county hospital, does not clearly state an intent of the grantors to retain a discretionary power to reenter the land if the land ceased to be used for the stated purpose. Appellants did not convey a [FSSCS], and we will not create one by constriction some forty years after the conveyance took place." p. 758 This case is just an illustrative case What justifies the rule that the court adopted? We don't want the land to be encumbered by future interests that constrain

FontaineBleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.

p. 370) What happened? The Fontainebleau Hotel began constructing a fourteen-story addition to the hotel. The Eden Roc Hotel is next to the Fontainebleau. When the new addition was complete, there would be a shadow of the addition over the cabana, swimming pool, and the sunbathing area of the Eden Roc during the winter. The Eden Roc is attempted to enjoin the construction because they claimed the addition would interfere with the light and air on the beach in front of the Eden Roc and cast a shadow that will render the beach unusable. This case is kind of like the spite fence cases, except for the fact that the court here finds there is no nuisance and gives the full entitlement to the Fontainebleau (box 2) The court says that there is no right to light and air, and by that fact, any interference with the light and air of a property cannot be a nuisance that gives rise to a cause of action Where is the bizarre reasoning here? "This is indeed a novel application of the maxim sic utere tuo ut alienum non laedas. This maxim does not mean that one must never use his own property in such a way as to do injury to his neighbor. It means only that one must use his property so as to not injure the lawful rights of another." RS: this is the dumbest sentence because it adds the word rights in and jut turns the whole inquiry into circular reasoning If it is not unlawful, then it is not unlawful. But the court is supposed to be deciding what is lawful! Also, if nuisance is a reasonable use doctrine, how can we ever have per se rules (like for light and air)? But here, the court says no air and light protections per se, sorry goodbye If the reasoning weren't enough, we know this to be untrue because of spite fences: court's recognize that fences erected out of spite that block light and air constitute a court-recognized nuisance This is partially a rejection of the ancient lights doctrine in the US: you have no right to a prescriptive easement on light and air that you have experienced for a long time

Tee-Hit-On Indians v. United States

p. 97 Supreme Court rejected a claim by Alaska Native tribes against the US for compensation for millions of acres of land Held that the constitution did not protect tribal property unless the federal government had formally affirmed title to the land Court here reads M'Intosh in the first way and rules that the tribe was a conquered sovereign. Therefore, Congress gets to decide whether the natives retained any property rights, and since none were recognized here, there is no claim