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PROPERTY Trover => demanding money for property that was taken; Replevin => action to get the property backConversion => suing for either - property back or money damagesPossession is not ownership; ownership is “title” to the propertyWhat is property?Real Property => Rights (all or some) to:Possession, Use, Control, Income, Consumption, Destruction, Modification, Sale/disposition, Exclusion, Extraction Personal Property => Privileges, Powers, Immunities;Tangible Property => (Chattels) if you can move it it's tangibleIntangible Property => Stocks (the interest in the company; the certificate itself does constitute the right/property), Debts, Copyrights, Licenses => things that can't be movedGeneral presumption in disputes of ownership in favor of the one in possession of the propertyFoundation of PropertyOccupation: taking possession of some thing to which no one else has a claim - a res nullius - with the intent of acquiring rights in that thingNatural Law: (Thomas Aquinas) => Humans have a "natural dominion over things because they have the power to procure and then use things”Labor: (John Locke) => The thing becomes the property of someone through labor exerted on the thingUtilitarianism : (Jeremy Bentham) => Private property rights serve to maximize human wealth; rejects natural law theory explaining property as nothing but a basis of expectation; Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.Economics: (Adam Smith)=>Society's wealth has three components: LAND (rent from - and use of - land), LABOR (see Locke), CAPITAL (stocks, other investments)

Right of PublicityRight of Publicity (p. 14): Some states formally recognize a "right of publicity" (= A right to control the commercial use of one's identity (name and likeness))Commercial Exploitation is key! Somebody who merely wants to use the name in honor might not have to get permission. Artistic component is exception! The right may exist through common law (court decision – Tennessee; Ohio) or state statute (e.g. Indiana, Washington -> RCW 63.60.010, RCW 63.60.020, RCW 63.60.040); Where the right exists, it generally survives the individual (i.e., it is "descendible"; in WA individuals 10 years protection, celebrities 75y)Substantial creative/artistic work as exception. (Tiger Woods case)

Attribute of identity is protected! Test is whether a reasonable viewer would be left to believe the used material is created/endorsed by the celebrity. (Bette Midler case – voice)Tragedy of the commons related to a scarce resource:I get all the benefits but I share the cost; Tragedy = individuals acting independently and in their own self-interest will ultimately destroy the shred limited resourcesright to publicity as a commons => Allowing the use of Tiger Woods image without any restrictions => dilutes the value of the name and would create an oversaturation of the market Tragedy of the Anticommons related to a scarce resource:Many people hold rights to different part of a certain resource Tragedy = when too many owners have rights in a scarce resource (and could spoil the use of the whole), the resource is prone to underuseIf right of publicity treated as an anticommons: It would be next to impossible to gain the rights to use Tiger Woods' name or likeness, no one would use it and therefore the value of Tiger Woods' name and likeness would suffer too. It would be too difficult to market and therefore nobody would try to, causing the value to drop In both cases the value of Tiger Woods name and likeness declines.

White v. Samsung Electronics America, Inc., United States Court of Appeals for Ninth (1993) p.280, => Intellectual property as celebrity image of Vanna White in form of robot

 Right of Publicity:LIKENESS (Tiger Woods case)VOICE (Bette Midler case) NAME (Elvis Presley case)

In this case, plaintiff doesn't claim any of this "traditional" sets => she complains that the robot would work as a reminder of her, therefore violating her right of publicity; => Any means that identify a celebrity or anything that is intended to remind of a celebrity is now added to the Right of Publicity by the Samsung court. Dissent (read for funsies): this addition overprotects celebrities and this regulation goes too far. => This addition would seem to be to infringing on the right on e.g. advertisers expression and this might in turn stifle innovation and creation etc. See p.282 "It impoverishes the public domain…advertisers will now have to cope with vague claims of 'appropriation of identity,' claims often made by people with wholly exaggerated sense of their own fame and significance" see also Note 8 on p. 285 9th Circuit: now the prime location to bring such suit due to this favorable precedent as well as Ca being situated in the jurisdiction. (Aqua with "barbie girl" song prevailed as this was a case involving artistic component/expression. Not rebuttal as to what was going on in the Samsung case and more closely to the Tiger Woods case.)

Cultural Property (p.36) – "Property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, literature, art, or science. " and therefore is property of the stateBUT state would have to show superior claimArtist's Moral Rights

• Right of Attribution: Recognition as creator; Prevent others from taking credit; Prevent use of name on others' work• Right of integrity: Prevent deforming changes to work, even after sale• In this sense VARA actually gives artists moral rights• Some state's do not extent the protection against deformation to protect the disposal of artVisual Arts Rights Act (VARA)• VARA confers moral rights to "works of visual art"; And a right to prevent destruction for those works of visual art w/"recognized stature"• But any "work for hire" is not a work of visual art - "a work prepared by an employee within the scope of his employment" (p.48)• VARA does not extend to define what an employee is, but the Appellate Court took a SCOTUS decision defining what constitutes an employee to decide the case.

  Property Rule (private negotiation)

Liability Rule (state regulates this)

P wins(P may legally object to D's pollution)

Injunction against D(D must stop polluting); Unless P may accept payment for use that P determines.

D can pollute, but must pay damages to P(damages set by someone else than P; the collective, society sets the damages for what is determined to be fair)

D wins(D can pollute)

No injunctionNo damages(D may continue; unless P can pay D)

D can be enjoined (has to stop) if P pays damages to D (Dell v. Webb case)and society determines the fair value of the damages.

Transaction costs are all the costs involved in when a property rule is invoked. Includes legal costs and whatever passes hands for the maintenance of the right to either continue or to stop.Liability rules occur assessment costs that are established by the administrative actions that assure the rights respectivelyProperty rules are better when transaction costs are lower relative to what the assessment costs would be for a liability ruleLiability rule is preferred when the transaction costs are lower than the property rule. When both costs are low, then either is efficient, and when either costs are high, then neither is efficient.

Personal PropertyCrops: Some things can be Personal Property for some purposes, but Real Property for other purposes!!The Illinois Rule (claimed to be applied by wife)

o Crops are part of the land until severed

o This rule seems to be easier to administer  The Kansas/Iowa Rule (claimed to be applied by husband)

o Crops are part of the land until they are "ripe" and ready for harvest

o Trial course applied this rule -> husband wins

o Colorado Court in this case follows this rule as well; affirms the trial court decision

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Finders=> Rule: A finder's claim to property is superior "against all but the rightful owner", except the true

owner [Armory] (first basic rule of Finders). The finder's claim is superior to that of the shopkeeper on whose premises

the property is found (public area of shop) [Bridges]. The Finder's claim is inferior to that of the owner of the private property on which the property is found [S. Staffordshire] …unless the owner did not have or enjoy possession of the land that the time of the finding (in which case, the finder's claim is superior). [Hannah]

Armory v. DeLamire (1722) (p.68) => chimney sweep, precious stone => Employer responsible for actions of employee when taken on behalf of the employer or as part of the employment (Jeweler)

Bridges v. Hawkesworth (1851) (money found in store) => finding occurred in public part of the shop -> finders keepers;

South Staffordshire Water Co. v. Sharman (1896) => contractor finds valuables (2 rings) while cleaning pool; claims ownership after "finders keepers" => property owner has right to the things => rings were in the matter that was to be removed by contractor => owner of the property have the right to decide what to do with the debris -- and so the rings belong to the property owner

Hannah v. Peel (1945) => LCpl Hannah is housed in property of Maj Peel, finds broche, turns it in to police; Peel owns the house but never lived there or had never real control over property; Peel was owner in name only and had never possession of house; Peel never knew about broche; did never manifest the ownership of property => finder can keep broche

Abandoned Property => Discarded with the intent to terminate ownership (finder > real owner)

Lost Property => Involuntarily parted with due to neglect or inadvertence (finder > real owner)

Mislaid Property => Intentionally set in specific place and then forgotten (real owner > finder)

Treasure Trove => Coins/currency found concealed so long that owner is dead or unknown (finder > owner)

Embedded Property => Property that become a part of the soil (real owner > finder)

Corliss v. Wenner (2001) (Idaho) => ID has no finders keepers law => treasure trove classified as embedded property; same limitations as mislaid property = property/land owner > finder => reason: discourage trespass and avoid risk of speculation regarding ownership

Maritime Salvage: Two competing bodies of law 1. Common law of Finders : ==> Finders keepers!

2. Maritime law of salvage : ==> original owner still own the property, but salvagers get liberal reward

Columbus-America Discovery Group v. Atlantic Mutual Insurance Company (1993) (4th Circuit) => Court has to chose => if there is clear and convincing evidence of abandonment by owner (finder has to prove) -- apply Finders law => if no evidence for abandonment -- law of salvage applies => significant amount of private property of individuals not part of the insured commercial shipment of gold on board of that wreck => Those individuals did not bring forward claim, so the finder is entitled to that gold (law of finders applies) =>

Multiple finders – rule of equitable division Popov v. Hayashi, 2002, San Fran Superior Court

(Conversion --- pre-possessory interest) => Court's rule: Where actor takes steps to take possession, and interrupted by illegal acts of others, has a pre-possessory interest => Court finds they are one-half owners of the whole => to prevail, P Popov would have to establish actual possession of the ball => Intent to control the property (P clearly had this intent) => Exercise dominion and control (this is the question) => Some say just stop forward momentum, others say it needs to be captured => Court: have to capture the ball; that's the custom and practice of the stands at baseball games => Seems clear-cut: if no possession, can't have conversion. BUT the reason he never captured, he was interrupted by illegal behavior of the mob. => Hayashi

ultimately had possession under the customs of the ball park

BailmentOverviewBailment is a legal relationship where bailor gives temporary possession of personal property to a bailee for a limited purpose

Two elements: (i) Bailor has to deliver chattel to bailee; (ii) Bailee has to have intent to exercise control over the chattel

There's no bailment w/ real property

Bailee has a certain standard of care: Traditional - Depends on whether the bailment is for bailor's benefit, bailee's benefit, or for benefit of both: 1) Bailor benefit: bailee only liable for gross negligence (ex.Bailor leaves car in neighbor’s garage); 2) Mutual benefit: this is most commercial bailments. You leave car at mechanic. Fixed car for you, money for mechanic. In these cases bailee is liable for ordinary negligence. (Most bailments are this type); 3) Bailee's benefit: someone borrows your lawn mower; bailee is benefitting -- bailee liable for even the slightest negligence But now days, courts have rejected this three-way approach and looked just at negligence. But some jurisdictions still uses the different types of negligence

Burden of proof in bailment cases : First - Bailor must prove: (i) A bailment was created (the elements are met), (ii) there was a loss of (or damage to) chattel.Then - Bailee must prove that the loss not result from the bailee's negligence Buena Vista Loan & Savings Bank v. Bickerstaff, (1970), Georgia

Court of Appeals, p.92 => money missing from bank deposit box; substandard handling of the key (negligence) => Bank argument is that there was never a written contract; so how could there be a bailment? Case lawTakeaways:

Don't need formal written contract to have bailment, can have one through course of practiceOnce establish there was a bailment, presume negligence of bailee when there is loss

Burden of proof in bailment cases:First bailor must prove:

A bailment was created (the elements are met)There was a loss of (or damage to) chattel

Then, bailee must prove that the loss not result from the bailee's negligence

The bank's practices were not within realm of what banks ordinarily do with safety deposit boxes => Was a mutual benefit bailment

Parking lot cases --- about what's expected based on the bailee's actions… valet parking, etc.

Shamrock Hilton Hotel v. Caranas (1972) p.95 => Purse with

expensive jewelry was left in Hotel restaurant by hotel guests => Restaurant waiter finds the purse and turns it in to the cashier, who subsequently hands the purse over to a claimant without checking any ID. That person was indeed not the rightful owner => When real owner returns to claim purse - purse was gone. => jury finds cashier liable for negligence in not checking the ID AND Caranas liable for negligence for leaving the purse => Court here finds for the plaintiff;

there was a constructive bailment => it's enough when the bailor (Caranas) leaves personal property behind, when it can be reasonably assumed that the bailee (Hotel) would want the bailor to receive that property back, thus creating a mutual interest (word could get out that the hotel cares about guests property -- or to the contrary, should the hotel not take care of its guests in such case, guests might stay away) => Once a hotel employee within their employment takes control over the property, the bailment was constructive => Bailees take on not just a container but also items within the container, as long it is reasonable to be expected within the container ==> in this posh, fancy hotel it can be reasonably assume that guests are wealthy and such content of a purse is not out of reason (What if another guest in hotel would have found the purse, would hotel be liable? NO. The act of the bus boy to pick up the purse and then the act of cashier taking the personal property for safekeeping and in the interest of returning the property, the hotel accepted the bailment. Would there have been a clear sign displayed stating that the hotel/restaurant was not responsible for lost items? As long as an employer accepts the property (finding & picking up with intent to return = delivery) and exercise control over it, the bailment is constructed)

 

Common law demands (in majority of jurisdiction): If person finds property (- voluntary effort to take possession) and errs in

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returning it (not to the true owner), finder is strictly liable for lost property to the real owner; p.99 Note 5 deviates from this general rule: as long as a bailment is created involuntarily and bailee holds on to property purely for the interest of returning it (no further own interest exercised), and puts in a good faith effort to return the property, the involuntary bailee is protected from liability in this case of negligence.

Bona Fide PurchaserTraditionally: One can only transfer property or rights one initially has, or one cannot transfer more rights or property one has no ownership of. Now there are some exceptions to this. See p. 101 Uniform Commercial Code (UCC)§ 2-403. Power to Transfer; Good Faith Purchase of Goods; "Entrusting". (1) A purchaser of goods (tangible, personal property) acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though (a) the transferor was deceived as to the identity of the purchaser, or(b) the delivery was in exchange for a check which is later dishonored, or(c) it was agreed that the transaction was to be a "cash sale", or(d) the delivery was procured through fraud punishable as larcenous under the criminal law.(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods have been such as to be larcenous under the criminal law.==> Entrusting ==>e.g. something to be sold in consignment

Title Spectrum:VOIDABLE TITLE(Valid until annulled; can pass good title to a BFP; eg. acquired by fraud))

XX-----------------------------XX-----------------------------XX

GOOD TITLE(Generally "full" ownership and

VOID TITLE(No interest other than naked

power to transfer) possession; no power to transfer, e.g. thief)

Charles Evans BMW, Inc. v. Williams (1990) => BMW dealer was good faith purchaser (bona fide purchaser) and therefore has good title of the car =>Hodges tricked Williams by fraud to sell him his BMW => He has therefore acquired a "voidable title" => Hodges sells car to BMW dealership under assuming the persona of Williams =>BMW dealer sells car to another customer => Williams discovers that Hodges check was bad and paid with false check => BMW refunds the customer and receives car and title back,=> give Williams the car back but retain the title => Williams claims BMW dealer bought car back from customer, so therefore, with the knowledge gained now, cannot claim a bona fide purchaser for value of the car anymore; but the transfer of car from customer back to BMW dealer was not back-buy (according to the Court) but was a return => Had Hodges stolen the car from Williams and sold it to BMW dealership, the purchase of dealership would not have been a bona fide purchaser for value, since Williams has never voluntarily given up ownership (and possession) of his car)

 "Good faith means honesty in fact in the conduct or transaction concerned" (p.103); "Good faith in the case of a merchant means honesty in the fact and the observance of reasonable commercial standards of fair dealing in the trade"

Lindholm v. Brant (2007), p.105; => Plaintiff had entrusted Warhold painting to arts dealer Malmberg to regulate various exhibition => Plaintiff gets entangled in divorse; Malmberg gives painting out to be his own (as having ownership); offers painting for sale to Brant => Brant retains legal counsel and takes extra care in asserting that Malmberg truly has ownership of the painting; => There was an entrusting according to UCC § 2-403 (2) and Brant was an ordinary customer* buying the way an ordinary customer would (even take extra steps beyond that), Brant could acquire good title, leaving plaintiff to go after Malmberg*p.108 "A buyer in ordinary course of business is defined as a person that buys goods in good faith, without knowledge

GiftsFocus for now still on personal property, although rules could be valid as well for real propertyFor this course: Gifts as inter vivos gifts (testamentary gifts are subject of wills and will be covered in trusts and estates class)If a doner who gifts does not possess good title, the donee does not gain good title similar to the BFP.

Requirements for a Gift Inter Vivos (Simpson v. Simpson)

1) Intent to make an immediate gifta) Gifts to take effect in future have no effectb) Can make gift of a "remainder interest" in chattels since

that confers current benefit to donee (beneficiary of gift)

c) "Conditional gifts" generally not enforced as such, but may be enforceable as a contact (exceptions: 1. gift causa mortis, 2. engagement gift cases in some cases)

2) Delivery

a) Actual delivery (donee takes possession) is strongly preferred

b) Constructive delivery (donor divested of dominion and control) may work where actual delivery is not workable => MOST states require at least this!!!

c) Symbolic delivery (some states, Washington does accept this; like a writing) often works too; not enough in most states!!

3) Acceptance a) Presumed where property is of value to the donee; if

donee does not want to accept such a gift, this requires a dedicated action to deny the gift, e.g., car - could cause extra expenses; other gifts that could create expenses in taxes; property that has underlying issues, like a corporation with a lot of problems or real property with environmental hazards etc.

Gift Causa Mortis (In Re Estate of Smith)

1. Intend to make the gift2. Notion of the anticipation of death,3. Gift has to be delivered, and4. Donor has to actually die

 Why difference as opposed to inter vivos gift? Gift causa mortis is ad once conditional and revocable

Conditional: takes only effect when the donor dies Revocable: if donor does not die, he can get the gift back;

in some states return is mandatory and the revocation is automatic, if the donor survives

An inter vivos gifts cannot be demanded back!Gift of remainder => remainder interest as a gift - a "real" inter vivos" gift. (by definition, you can't take possession now, but as soon as death occurs and that's the end of story) (Gruen v. Gruen) When looking on gifts, common law usually does not accept conditional gifts. BUT there are two exceptions to that rule:

- Gift causa mortis

- No-fault-rule in engagement rings in state where accepted (like PA)

Simpson v. Simpson (1998), p.110 => Father promises son his guns as a gift during a fishing trip, but son never took possession of guns => (To die testate = died having had a will In this case, according to the father's will, everything goes to his son) => Issue is, whether the guns are part of the estate or whether they were gifted 7 months prior to death => Father was in debt, and before son could become beneficiary of the estate, all creditors have to be paid off. => Ex-wife was a creditor and claims that guns are part of the estate, because if they are, the more would be available for the distribution to the creditors => Does the case meet the requirement of gift? ==> two facts have to be met: 1) intent to make a gift as a present transfer (as opposed to a future transfer), AND 2) delivery - actual, constructive, or symbolic (+acceptance) => Holding: Delivery did not take place, therefore no gift was made. (Does not mean mother will take ownership of guns); HYPOTHETICALLY: Would it have made a different to the Court, if the son would have handed the son a not stating "I want you to have my guns, now"?

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This could constitute a symbolic delivery (IF accepted by state)Constructive delivery is if the owner relinquished dominion over the property

Donald handed a note to Terry expressing his donative intent?

o Symbolic delivery, if accepted in particular state

Donald handed Terry a bullet that fit one of the guns?

o Symbolic delivery, if accepted in state

Donald handed Terry the key to the gun cabinet?

o Constructive delivery

In most states actual or constructive delivery is necessary for gift!

Gruen v. Gruen (1986), p.111 => Father buys a Klimt painting in 60s

and subsequently sends son letters giving the ownership of the painting to his son, but retaining the right to possession until father dies ( initial letter) => In 2 later letters, he gave the painting away as gift without ties, yet remained in possession of the painting. => Was the painting a gift, despite no actual delivery until after death, and the son therefore owner of the painting, or was the painting part of the Estate, which would have been more beneficial to father's new wife? => Father has given a remainder interest as a gift - a "real" inter vivos" gift . (by definition, you can't take possession now, but as soon as death occurs and that's the end of story) => the letter transferred title to the painting, and therefore constitutes an actual delivery of the ownership. => Actual, physical delivery of the painting was not necessary, as lowest court had ruled. See p.114. In situations like in this particular case and taken the interest that was given as gift, to demand actual delivery of the painting would have been "silly". Gift of remainder in this case was essentially done by the first letter for tax reasons. All 3 letters taken together were a gift or remainder. Essentially, the tax reason might not have worked out In turn, would there only have been the last letter, saying the father wants the son to have painting, the situation would not have been different than in Simpson, and the note would have been no more than a "better" symbolic delivery than an oral promise. => Why effective gift here but not in Simpson, because the 3 letters together constituted constructive delivery. Hypo p.116 (4). => if the state accepts symbolic delivery for a gift, then the note would have been enough. But it seems that New York might not have accepted the symbolic delivery. Hypo p.116 (5) => Yes. The son would have to be present at the apartment for a physical handover. He could afterwards still decide to leave it at the place of his father

In Re Estate of Smith (1997), p.116 => Alfred Smith writes 4 checks - 1) girlfriend, 2) girlfriend's sister, 3) his sister, 4) to his niece => Checks were delivered before death, but cashed in after the suicide of Alfred => Were those checks gift's causa mortis = gift in anticipation of death =>Gift was causa mortis; check is constructive delivery (Dissent: To accept gift of causa mortis in case of suicide might be seen as encouragement of suicide; against VA policy p. 117) => Other issues: Delivery of money gift in form of check has not occurred until money has been received from bank. This rule may be suitable for the time when the donor is still alive and could revoke. => But in this case, the donor had no intent not to give the money or to stop the payment order. => In this case it could also be called an inter

vivos gift, as the owner had no intention of stopping the cashing of the checks. => Gift causa mortis is a form of inter vivos gift, but it is a rare exception as the present is conditional and revocable. 2) Facts: Holographic will (a will entirely in the handwriting of the decedent, signed by the decedent, and without any witness.) In some states, such holographic wills are accepted as equal as to a notary (regular) will. Washington does NOT recognize holographic wills. => Alfred writes a holographic will promising and option to his sister's husband to buy his Corvette under value. => Is this will enforceable, it was merely and expression of an intent => It was not a direct gift of the car but a direct gift of the option (the discount); it is no different than direct gift of cash the difference between the option price and the real value.

The Engagement Ring Cases Lindh v. Surnam (PA) (1999) p. 120 => On and off engagements - in

final altercation woman does not return the ring => Who gets the ring? => Man gets the real value of $23,000 of the ring => The donee must return the ring when the engagement id broken, regardless of who called off the engagement or why (no-fault-rule) (PA law; minority of states?) => Reason: it would be difficult to find out the truth in such personal affairs

Albinger v. Harris (MT) (2002) => Similar facts: but the man attempted to take the ring away from her with violence => The donee can keep the ring if he or she is not at fault. (MT law)

Possession & SovereigntyGeneral Rule of CaptureA person who first captures otherwise unowned resources is entitled to the resources. Or: whoever is prior in time wins JOHNSON and GRAHAM'S Lessee v. WILLIAM M'INTOSH.

(p.128) => case about discovery of land/America => Claim of land by the discoverer -- follows a bit Locke's property theory that the one who puts work into it owns the property. => Leaving the US with the rights claim for the land as the Native tribes lived of the land and the forests and that they would not be capable of being integrated. The right presumption goes back to old English law in the 1400s of that discoverer claim land for the Crown when there has been no other Christian on that land before. => Decision of the Supreme Court, as the highest court of the conqueror) is more an assertion of authority and maintenance of the status quo, than a true legal decision. It is a political decision rather than a just balancing of rights. => Justice Marshall does not say that the tribes have no property rights in the land they occupy: Natives have right to occupancy, right to use, right to possess -- but right is not alienable and cannot be transferred. Natives cannot profit of the land through transfer. This rights relationship between US gov't and native tribes going forward after assimilation is similar to a landlord - tenant relationship. => US asserts its rights to ownership on basis of a variety of treatises with European countries who had conquered the land before. Furthermore, the justification comes from the argument that the Native tribes did not use the land in the manner the Europeans and the US deemed proper

Trespass

Right to exclude is a fundamental element of the property right and is one of the essential sticks in the bundle of property rights Harvey F. Jacque and Lois C. Jacque, Plaintiffs-

Appellants-Petitioners, v. Steenberg Homes, Inc., Defendant-Respondent, (1997). (Landowner prohibited the crossing of his land to deliver a mobile home during winter; company crossed anyway) => punitive damages (to punish D) can be awarded in trespass action, even if only nominal damages (=small token to reflect victory) were awarded and no compensatory damages (to compensate for actual harm or damages).

Nuisance v. Trespass

Nuisance Trespass

Interest protected

Use and enjoyment of property

Possession (Right to exclude)

Harm plaintiff must show

Substantial None (nominal damages rule)

Utility of defendant's conduct

Balanced against harm to plaintiff

Irrelevant

Nature of interference

Indirect entry Direct entry of something tangible

DAVID R. ADAMS, ET AL., Plaintiffs-Appellees, v CLEVELAND-CLIFFS IRON COMPANY and EMPIRE MINING PARTNERSHIP, Defendants-Appellants. p.137 (COURT OF APPEALS OF MICHIGAN, 1999) => Dust and particulate matter is the significant question at hand; as a practical matter one would bring both claims; the difference as to recovery if sustained in the court action - for trespass one can bring nominal damages claim (= $1, or so) => Compensatory damages only for real damages => Class action suit => Suing for trespass and nuisance for particulate matter settling on their property and shaking of grounds and noise through blasts => Initial court awards compensatory damages for trespass to plaintiffs => Defendant appeals => Court rules, it is more a nuisance claim than a trespass; for

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trespass there would need to be a tangible entry onto the property => Since there was not a tangible enough entry, then the court might have had to decide whether there was a direct entry => to take away: => Dust is not tangible

Michigan Court: it’s more a nuisance claim, but is remanded for retrial left to decide whether there is indeed a nuisance (trespass preferable because the amount of evidence to be brought for trespass is so much less than for nuisance) => Court directly rejects the Bradley v. Asarco reasoning: under WA law in Asarco the plaintiff has to show substantial harm (for trespass of intangibles)

Exclusion/Trespass of canvassers (Handelsvertreter, Stimmenwerber, Handelvertreter)Local ordinance can limit access to private property for reasons of canvassing in the interest of lowering crime, to prevent fraud, and to protect privacy, BUT such ordinance has to be narrowly tailored. WATCHTOWER v. VILLAGE OF STRATTON, SCOTUS (2002) =>

residents can opt out of allowing people come to door uninvited => without special permission canvassing violates statute => Court opines that the ordinance of the village is not narrowly tailored enough. It goes too far to truly furthering legitimate gov't interest. => The ordinance also rules out activities that do not further gov't interest (e.g. girl scouts, police)Hypo: => gated community: should Jehova's Witnesses be allowed to enter a gated community? => Private interest group limiting access to private property and is not as exclusive to general canvassing as girl scouts or police etc. as the ordinance of village => Ordinance of the village in case constitutes too much government involvement in the matter of the 1st Amendment

Trespass to chattel => intentional physical contact with the plaintiff's chattel; this contact causes dispossession to the plaintiff/owner Universal Tube & Rollform Equipment Corporation,

Plaintiff, v. YouTube, Inc., et al., Defendants.(2007) => Claim for trespass to chattel due to increased traffic to their website (utube.com), causing the site to crash and to increase the fees for the internet service significantly => Ruling: => Trespass to domain name is no trespass to chattel => Potentially trespass to chattel on internet servers => Precedent: CompuServe, Inc. v. Cyber Promotions, Inc. (1997) => But this case distinguishes itself in the fact that utube does not have own servers or any interest over own servers but is leasing them, whereas CompuServe had trespass to the servers in their possession => Would have not made a difference however since youtube made no effort to cause the interference but the interference occurs through mistaken visitors and youtube has no part in causing the mistaken visits => Clogging CompuServe's servers through

spam email is "real" damages, whereas in the case of Intel v. Hamidi (2003) (Hamidi, a disgruntled employee), used Intel's servers to send messages to other Intel employees and Intel brought a trespass claim but lost, as there was no harm by clogging the servers; Intel was likely more concerned about the content of the message where as CompuServe's harm occurred through the "taking over" of server capacity

Adverse Possession Adverse possession results from a utilitarian idea, that whoever is in adverse possession is the one that makes more use of the land (property) than the original owner. That real owner apparently did not show "sufficient interest" in the property from the point of view of utilitarianism.Adverse possession are in place to iron out inconsistencies in the title recording and to encourage "good use" of the land. Elements of Adverse Possession o Actual => use/possess the property in the way that a

reasonable original owner would do. In regard to farmland, then would have to use the land for farming; in a mine, one would have to engage in mining activities

o Continuous (Kunto) => as continuous as a reasonable owner would do. If reasonable owner only is during the summer on the property, then that counts. The continuous use has to last for a certain amount of time. In WA it's 10 years (statute of limitations).

o Open and notorious (Gorski) = visible and obvious, that it is clear and visible to the reasonable owner, making it clear that one has the intention of taking the possession. Hidden possession (coming every night to star gazing) and leaving no trace, does not constitute

o Hostile (Gorski) => being on land without permission of the owner. Every jurisdiction demands that. If true owner wants to prevent adverse possession all he has to do is give permission. Where hostile gets problematic is that some jurisdiction add an intent requirement. The adverse possessor has to enter the land with an evil mind => knowing the property is not his but that one intents to take it over. Other states require good faith in the adverse possessor - believing that the property belongs to me, despite it does not.

o Exclusive (Tran; ITT) => if one shares the possession with the public, then it is not exclusive. Isolated visits by third parties wont by itself destroy claims for adverse possession.

o Claim of right (ITT; Halpern)=> some jurisdictions extend the "hostile" requirement to the requirement that the adverse possessor must believe that the property is his; if a state (WA – and the majority of the states - does not demands this element)

Washington State statute only makes mention of the 10 year requirement of statute of limitations. When the time countdown begins is a matter of common law overlay, i.e. to be decided by courts. Washington does not care about the claim of right elementWhat to do in piece of property rectangular of 500 acres and a person comes in and makes use 5 acres of it, then one only gains ownership of those 5 acres.BUT a few minority states allow for adverse possession of all 500 acres if one acts under the color of title (if the title is bogus) then one could adverse possess the whole.If one engages adverse possession for a certain amount of time, like 7 years, and then sells the land while transferring a deed to second person who stays on the land for 5 years, these two parties entered a legal relationship (privity) and the two times of adverse possession can be added to satisfy the statute of limitations.Trespasser comes onto property and squats for 7 years. Then leaves and second squatter enters the land and squatters for 5 years, this is not a legal relationship (privity) and the statute of limitations has not run.

Warranty deed => I warranty you/I promise to you that I own the title to this property and if I was wrong the buyer can come after the previous owner for recovery. A quitclaim deed => does not make any promises to the true ownership; all it does is to give up all claims towards the property. Tran v. Macha, 213 S.W.3d 913 (2006) => driveway dispute

between two lots

Lot 5 Lot 6

1970 Haliburton Buddes

1995 Tran/Roser

2001 Machas

Trial and Appeals court ruled that strip had changed

ownership to Haliburton and Machas through adverse possession

Supreme Court focuses on element of Exclusivity; all other elements are met

Haliburton never intended to exclude others from property so the pure occupation of the o Shared use with the true owner defeats the claim for

adverse possession because the claimant lacks EXCLUSIVE use of subject property

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No one could prove that Ms. Haliburton built the garage => why does that matter? ==> had she been the one who built it, it would have been easy to prove that she was hostile in her actions. BUT that still doesn't do away with the exclusivity requirement => there was shared useo She let Buddes use since they were familyo A better claim could have been if there was a former

known owner (before the Haliburton) who built the driveway and the garage and de facto had acquired the strip via adverse possession (exclusive use for the amount of statutory limitations required), then the strip would have changed ownership through adverse possession and would have still be valid when Haliburton bought the property and further down the line the Machas

Mannillo v. Gorski, 255 A.2d 258 (1969) => case less about an adverse possession of an area of land but about minor and notorious encroachments on boundary disputes!!! => Maine and Connecticut doctrines are strictly relevant to cases of boundaries disputes, not about occupying areas of land.

Lot 1008Plaintiff

Lot 1007Defendant

D infringes 15 inches on P's property => Maine doctrine => D has to have evil intent to adversely possess property in order prevail; mistakenly building too far out onto another's property but intending to keep it despite gaining knowledge of true ownership (required) satisfies Maine Doctrine p. 163 => Connecticut: "The very nature of the act (entry and possession) is an assertion of his own title, and the denial of the title of all others. It matters not that the possessor was mistaken, and had he better informed, would not have entered on the land." p.163 => New Jersey followed the Connecticut doctrine, saying intent is not required in these situations => Supreme Court of New Jersey does not see Open and Notorious requirement fulfilled => "no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious." p.165 ==> actual knowledge here is limited to the boundary disputes as in this case; in regular adverse possession it is the knowledge of the reasonable owner => It could be, that the plaintiff might have to sell the 15 inch strip infringement at a fair price, if the cost of removal of the structure might

be too high <== "very innovative", i.o.w. no other court/state does that

ITT Rayonier, Inc. v. Bell, 774 P.2d 6 (WA Supr. Court, 1989) => The adverse possessor purchased a houseboat, which he moored on a lake. The property that was the subject of the action was directly adjacent to that moorage and was purchased by the landowner, who had paid the property taxes continuously since its purchase. The landowner filed an action to quiet title and prayed for damages for trespass and for the ejectment of the adverse possessor. The court held that good faith no longer constituted an element of adverse possession. => court affirmed the appellate court's order on the basis of the adverse possessor's failure to establish exclusive possession, and reversed the appellate court's alternative holding that the adverse possessor failed to establish a good faith claim to the property. => Not a boundary dispute

Test: under Washington law, it does not matter whether one enters the land and takes possession of the land knowingly or not. Hostility is established by the fact the original owner has reasonably knowledge and remains passive ==> podcast about 10 min before end (Nov 5) => Washington does not impose claim of right element, and is therefore part of the majority of states! (majority of states do not impose claim of right element)

Halpern v. Lacy Investment Corporation, 259 Ga. 264 (Ga Supreme Court, 1989) =>

Halpern Lacy Investment

=> Original owner refused to sell land to Halpern; so the Halperns take over the part of the land anyway (bulldoze it) => 20+ years later Lacy Investment bought land from => Georgia requires good faith regarding ownership in order to sustain adverse possession; good faith in the manner that the adverse possessor must believe that the property belonged to him (even if mistaken) Georgia is part of the minority of states requiring good faith => In Washington the claim of the Halperns would be sustained; => One could also establish a "hybrid" rule saying that intent does not matter unless there is bad faith => Bad faith in taking possession of property is enough to thwart adverse possession claim => Oregon statute requires an honest belief that the property taken belongs to enterer (=good faith element); requires a subjective belief AND an objective proof for belief that

property belong to possessor in order to win adverse possession claim => California requires payment of taxes as proof (?) => p.172 (2) - Response: adverse possessors are required to act like a reasonable owner, one would be proactive in paying property taxes; alternatively, this could be a tool of government to double check the true ownership, if taxes are paid twice for one piece of property; again Washington does not require any tax payment

Adverse Possession of Chattel O'Keefe v. Snyder, 416 A.2d 862 (1980) p.172 => Case about

adverse possession of chattel => Plaintiff artist sought to recover three paintings from defendant's gallery that were she allegedly owned and which were stolen from another gallery. Defendant asserted he was a purchaser for value, had taken title of the paintings by adverse possession, and that the action for replevin was barred by the statute of limitations period => Paintings have been held by Franks for more than 30 years; Snyder bought them from Mr. Frank=> Snyder brings defenses: => Snyder claims that statute of limitations for bringing a replevin action for theft has run;

That Franks have gained possession of paintings through adverse possession => Snyder was then bona fide purchaser for value of paintings => Lower courts seem to combine defense 1 and 2 into one, saying that Snyder did not prove elements of adverse possession, but inherent problem is the element of "open and notorious" possession => so can one adversely possess a chattel like a painting? => Court argues that the elements cannot realistically be employed for adverse possession for chattel; issue then focuses on the time when statute of limitation starts to run => introduction of discovery rule (statute of limitation does not start to run until she has proper knowledge, i.e., when she knew or should have reasonably known that the chattel was taken AND who has taken the property Discovery Rule (p.175): "O'Keeffe's cause of action accrued when she first knew, or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor of the paintings. " ==> switches the burden of proof to the plaintiff (to O'Keeffe)It's not when one did discover, but when could one have reasonably discovered; sometimes a report to the police => case switches to statute of limitations defense instead of adverse possession defense => Court to BFP defense: Frank would have needed to have voidable title; if Frank stole paintings - this would be void title - there is no way to turn this into voidable title or subsequently good title; => second way for BFP could be the way that the husband sold the paintings through his gallery, and just said that the paintings were stolen in order to keep the

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peace at home, then the buyer had received good title and therefore could have transferred good title New Jersey is actively rejecting adverse possession of chattel but focuses on the statute of limitations through discovery rule. Discovery rule starts anew with every conversion and transfer

Hypo: If this had happened in New York instead of New Jersey - what would have happened? => New York: Statute of limitations starts to run when owner asks for the property back, and the possessor denies returning the property. (Demand and refusal rule)p.182 – 183 => However if the possessor is the thief, the statute of limitations starts to run at the time of the theft, not at the time when the owner asks for property back.

Jus Tertii DefenseA takes property from O (the true owner of property) and B steals the property from A. Can A sue B to get the property back (taken that O is still not in the picture)? => in Minnesota, YES. (Anderson v. Gouldberg (1892), p.184) => Majority of states follows this rule!!

=> NO, in the case of North Carolina.(Russell v. Hill (1900) p. 185) => Defendant only needs to show that the plaintiff is not original owner to survive the claim.

Jus Tertii defense in real property will not work if A was in actual possession of the property at the time of the entry of the trespasser (who would bring the jus tertii defense) ==> Majority of States

Anderson v. Gouldberg (Supr.Ct. MN, 1892), p.184 => Anderson cuts logs from a property not his, and Gouldberg stole the logs from Anderson. Anderson brings claim but Gouldberg claims that Anderson was not entitled to cut the logs, because mistakenly Gouldberg assumes he had right to cut down logs => Anderson counters with establishing that Gouldberg was "not an agent of the true owner". => Gouldberg is like a finder of the logs, but for Gouldberg, Anderson is like the true owner and there is no proof of abandonment of the logs of Anderson =>The question is the search for a better title to the logs, not the true title of the logs. => If a thief loses stolen property and another person finds that property, the thief could sue the finder for recovery of the property in Minnesota, because the rights to the property greater for the thief than the finder. => The Court's job is to settle the dispute, not to go researching who might be the true owner! => In Minnesota, plaintiff would only have to proof better

claim over defendant; not enough for defendant to claim that the plaintiff does not have good title either

Russell v. Hill (Supr.Ct. NC, 1900) p. 185 => State grants land to Busbee (as trustee) => State then grants overlapping land to McCoy => McCoy sells timber on overlapping land to Russell (Russell acts in good faith) => Russell cuts timber and places logs at riverbank => Hill et al take logs and sell to Asheville => Russell is relatively a true owner, but Court opines that Russell does not have good title and therefore cannot bring claim against Hill. => In Anderson it was enough to show better title; => Here in this case (in North Carolina) one has to show true (good) title => Court: if "we" let Russell pursue in his claim for trover (=money for the logs; money damages. Russell doesn't want the logs back), Hill has still the logs (or actually sold the logs further) and Busbee could still come forward and rightfully claim the logs from Hill (who has still the logs) and Hill might have to pay twice. => Potential avenues open of Russell going after McCoy for failed fulfillment of contract. => If Russell had sued for replevin (getting the logs back) and Hill had still the logs, might be a different outcome.

Tabscott v. Cobbs, p.186 (Supreme Court of Appeals of Virginia (1854)) => Th. Anderson (original owner) => land to Harris, Rives & N. Anderson => Sarah Lewis bought land from those 3 => Elizabeth Cobbs is heir to Lewis but no proof that she really owned the land (only proof would be that Lewis was on possession of land (and occupied it) but might not have paid full price for property => Tabscott enters land, has it surveyed and claims ownership (wants Cobbs ejected) => => no dice! Assumption that Cobbs was in actual possession of property because Lewis was in actual possession => Actual possession = acting as a reasonable owner would - does not mean has to be there on location 24/7! => Court follows Minnesota rule (as do the majority of states) when it comes to real property, but only under the assumption that the plaintiff is in actual possession of property at the time of the entry of the trespasser.=> Key question: was Cobbs in actual possession at time Tapscott entered => assumption yes she was, since Lewis dies in possession we assume heir is in possession as well, unless there is proof to the contrary => If not in actual possession (making actual use of the land) at the time of the trespass, the jus tertii defense of the trespasser (possessor does not have good title either) does not fly in Virginia and majority of states

Mistaken ImproversA good faith trespasser, who substantially increases the value of the chattel, by making improvements to the

chattel (through labor), acquires ownership of that new chattel, but is still liable for damages to the owner.If a raw material is taken (by good faith trespass) and has undergone such a physical change so that it is now a completely different chattel => the laborer has now good title (Majority of States) => simply “improving value” through different markets (e.g. silk in Hong Kong vs. NYC) does not count as improvement; there has to be some labor involvedSince it’s mistaken improvers here => the laborer has to have substantially improved it => the improver, as long as he is acting in a good faith, thus has now good title => test is the material increase in VALUE (beam in a house is still a beam,

but increased value) => improvement through labor (or labor and new materials; )=> No true test as to how much "physical change" but about the "material value from improvements have been made through some kind of labor". (the former is easier to decide in cases like Olives/Olive oil, or standing timber/cut logs; more tricky in cases of wood beams constructed into a house) => in vast majority jurisdictions the "physical change" test is still valid; the "material value" change has only been adopted in some states (here a Michigan case; Weatherbee). Test is to compare the relative labor that has expended (see John Locke) in order to determine who has title. Improvement has to be substantial, and the new owner is still liable for damages.The plaintiff cannot sustain an action for replevin, the defendant gained good title, but the defendant is still liable for damages.Question is - how to calculate the damages? See note (2) p.194 -- is $25 of market value of the trees enough, or should there be more like diminution of the property value, or the lost opportunity cost (compensation for lost future profit of the owner) Wetherbee v. Green (Supreme Court of Michigan, 1871) =>

Wrongfully entering onto plaintiff's property cutting timber => creating wood hoops => Trial court does not allow introduction of evidence that the wood had changed from standing timber to wood hoops => Trial court ruled in favor of plaintiff; Supreme Court reversed; Value of timber standing on land = $25; Value of wood hoops = $700

Isle Royale Mining Company v. Hertin (Supreme Court of Michigan, 1877) => Mistaken improver is plaintiff => cut the timber while trespassing but original owner takes/disposes of the timber => Distinguishes case from Weatherbee case; no improvement => Mistaken owner does not get because the added value of the labor is not as great as in WeatherbeeIf it would grossly unjust for the owner to gain from the labor of the mistaken improver, the improver might be eligible for

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compensation for his labor, while the owner still gets damages for the trespass.

Value of Owner's raw materials

Added value of the Laborer's work

Total Value

Title to the raw material

Beneficiary of Laborer's work

Wetherbee

$ 25 4%

$67596%

$700 Laborer (forced sale from owner to laborer)

Laborer retains

Isle Royale Mining Co.

$1/cord(35%)

$1875(65%)

$2875 Owner retains

Owner gets

See p.198 -- Somers v. Kane what to do in co-mingled goods => p.199 => even if the goods are comingled or confused, good faith is not taken into consideration in this case. If one added one liter to 30 liters of oil then the plaintiff owns 1/30th of the oil;

Improvement to land is similar; and is still mistaken improvers Mistaken Improver does not get title to the land by making the improvement but only to the improvement; improver is entitles to get value of the improvement. Owner could sale land (minus improvement) to improver or could pay improver the value of improvements. This makes mistaken improvers to land different from mistaken improvers to chattel! Hardy v. Burroughs (Supreme Court of Michigan, 1930) =>

Plaintiffs constructed house on lot owned by defendants => Plaintiffs alleged that they constructed house by mistake (value = $1250), that other defendants had taken possession of the house and occupied it, and that defendants declined to make adjustment with plaintiffs => held for plaintiff; defendants should not profit by plaintiffs' mistake => Why can't be brought case following Isle Royale => best guess is that the house itself (the improvement to the real property) was not all that much improvement in value to the land! Court says there is no claim under any statute or under common law, so the only action could be brought under an equity claim => what was the value of the improvement ($1250) => property owner could pay the defendant the cost

of the house or could sell the lot to the plaintiff at fair value; => The mistaken improver DID NOT get title to the property. The improver gets only title to the improvement NOT the land itself. => this makes real property cases different to chattels. : "If, upon the hearing, plaintiffs make a case for the equitable relief, it will be proper to offer to defendants by decree the privilege of taking the improvements at the fair value found by the court, or to release to plaintiff upon their paying the fair value of the lot found by the court… "p.201

Vertical LimitsHistorical maxim: landowner owns everything above the ground infinitely into the sky as well as below down to the coreLimit above ground:See p.208 => three different theories on aerial trespass; in this case, property ownership - to the level a landowner can reasonably use his property he owns the landspace and therefore does own parts of superadjacent airspace (not unlimited though) United States v. Causby, 328 U.S. 256 (1946), p.202 => low-

flying military aircraft from nearby field fly directly over a chicken farm and house => frighten chicken, causing production to fall off, (forced to go out of business), infringing on enjoyment of property => federal government has taken (by inverse condemnation) an easement for noisy flights over farmer’s property => must pay damages => Cosbies are not suing the US for trespass but for taking => protection under the 5th Amendment => no taking of private property without just compensation

Case against US that gov't has effectively taken the property through making it unusable because of planes => Argument of US: Compliance with the regulations of minimal flight level is enough to bar from recovery for taking; planes were operating in public space => No compensable damages can be alleged => Landowner does not own the superadjacent airspace => beyond the space occupied by owner through structures and improvement Yes, planes were in compliance, but standards are too low and general public domain is more at 500 - 1000 feet level => Justice Douglas says it does not matter how high the Cosby's did indeed built up but [plaintiffs] own how far/high they could reasonably build up; up to the portion/to the level a landowner can reasonably use his property he owns the landspace and therefore does own parts of superadjacent airspace (not unlimited though)

Amount of damages are not being decided here -- but clearly states that there was damage to the propertyEasement = right to use all or a portion of the property for a limited purpose

=> By constantly running airplanes over the property and therefore effectively taken a fee interest over the property => liable for the full amount of damages => if Causby's would grow corn instead of raising chickens - same claim but less damages

What if Causbys owned not property directly below but adjacent to the one directly affected - would they still prevail? ==> NO - there is no trespass over their property. MOST states require direct over-flights over the property. Washington state is an exception to that rule!! Martin v. Port of Seattle ==> no actual over flight required, noise of planes going near the property is enough; Washington constitution - "nor shall be private property taken or damaged through public use without just compensation." => Normally trespass claim does not require the proof interference with enjoyment of this land

Vertical limit below ground Edwards v. Sims, 24 S.W.2d. 619 (Courts of Appeals

Kentucky, 1929), p.209 => Onyx cave case => Owner of land owns everything underneath and above within surface limits => old "ad coelum" doctrine; within limitations => cannot interfere or infringe on 3rd persons rights Dissent would have applied rule of capture => the one who explored and commercialized the cave should own all the rights to it => Dissent - a little bit of both:Labor (John Locke) => A thing belongs to someone when she or he removes the thing out of the State that Nature hath provided and mixes it with his or her labor=> The thing becomes the property of someone through labor exerted on the thing => Utilitarianism (Jeremy Bentham) => Private property rights serve to maximize human wealth => Bentham rejects natural law theory explaining property as nothing but a basis of expectation => Property and law are born together, and die together. Before laws were made there was no property; take away laws and property cease

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Intellectual Property

Foundation of IP

Property Protected Party

Protected Interest

Duration

Patent Inventor Exclusive rights in new, non-obvious and useful inventions

20 years from application (not approval)

Copyright Author Exclusive rights to works of authorship in permanent form

Author's life +70 years; works of historical authors like Shakespeare or Twain are now in the public domain

Trademark User Rights to use a distinctive logo or indicator to identify good

Continuous throughout active use; no natural expiration date, as long as the logo is continued to be used actively

Copyright is a descendible interest Baker v. Selden p. 223 (Supreme Court of the United States,

1879) => Plaintiff, testator for complainant, obtained a copyright for a book on the art of bookkeeping written by complainant and sued defendant, an author of another book on the subject, for copyright infringement. => Had the defendant used whole chapters or significant parts of the original book then this would have been infringed. See p.227 note 3

Copyright protects only the expression of the idea, not the idea itself. => Is codified in 17 U.S.C. §102(b) [part of the Copyright] To protect an idea requires a patent. The Barbed Wire Patent p. 229 143 U.S. 275 (1892) =>

Plaintiff = Washburn & Moen Mfg. Co. (acquired the patent from Glidden and used it to make and sell barbed wire) => Defendant = Beat 'Em All Barbed-Wire Co. (made similar) => Despite there have been similarities in the prior versions of barbed wire, "it was apparently [Glidden's solution] which made the barbed wire fence a practical and commercial success…(test applied by the court to grant patent) Under such circumstances courts have not been reluctant to sustain a patent to the man who has taken the final step which has turned a failure into a success. In the law of patent it is the last step that wins." p.231

Guide to 35 USC §102 p.234 - Note 4 – Conditions to PATENT ability Novelty

§102 Invention was

By In Before

(a) Known Others USA Date of Invention

(a) Used Others USA Date of Invention

(a) Patented Others Any Country

Date of Invention

(a) Published Others Any Country

Date of Invention

(b) Patented Anyone Any Country

1 year pre-filing

(b) Published Anyone Any Country

1 year re-filing

(b) In Public Use Anyone USA 1 year pre-filing

(b) On Sale Anyone USA 1 year pre-filing

Statutory Bar => Filing the patent has to happen within one year of invention (using/publishing/using it in public/selling)

Application has overcome both burdens (a) AND (b) in order to be patentable. Note 6.Why is the patent and trademark office not more diligent in conducting the issue of a patent? Should they not prevent the issuance of new patents that sort of already exist? ==> huge workload of patent office prevent that; put the burden on the parties to fight about patents that do matter makes sense in light of the sheer amounts of patents that never make much difference or have impact Hanover Star Milling Company v. Metcalf, 240 U.S. 403

(1916) => Two cases were argued together and were disposed of in a single opinion. Plaintiff manufacturers, who had markets in different parts of the United States, sold flour under the tradename "tea rose." Each asserted that defendants, rival manufacturers, had infringed their trademark. => 1872 => Allen & Wheeler use "Tea Rose" in OH (not in AL) => 1885 => Hanover first uses "Tea Rose" in IL => 1900 => Hanover first uses "Tea Rose" in AL => Later => Metcalf sells Steeleville's "Tea Rose" flour in AL Trademark protection has geographical boundaries => since Allen & Wheeler did not sell "Tea Rose" flour in AL, there is no trademark protection despite the earliest use of the name - but not within AL

Rights to a TRADEMARK arise through the USE of that trademark in the particular markets! Trademark is historically been justified as a consumer protection => customers want to be sure that the same brand It is protecting the brand of the company for their consumer!Different from patent law - which is in place to spur innovation; trademark law is to protect consumer markets. Registered trademark with Patent & Trademark Office would have given constructive use throughout the United State! But one only preserves priority in a fight. One will actually have to enter the market! Ongoing validity of a trademark requires continued use of it! This gives some protection should a competitor enter the market before the one who registered the brand could enter the market. => Registration takes the place of venue to the Federal Courts; unregistered trademarks are adjudicated in State Courts.

Evolution of Intellectual Property=> NO copyright for generic names=> shapes can be copyrighted IF customer connect certain shape with particular brand=> Company second to enter the market has obligation to avoid confusion among customers as to the brand and product

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Test ultimately is always, does a consumer get confused about a particular product thinking it is from one particular manufacturer but is ultimately from another. International New Service v. Associated Press 248 U.S. 215

(1918) => © News? => is the news copyrightable? => Supreme Court: NO, it is a recap of events that have

happened; no copyright protection for raw news, but the particular language of the news story and some of the language might rise to the level. However, once it has been widely published it becomes public knowledge/property. => If no, is there another claim? Unfair competition claim? Misappropriation claim? INS/upi does have a property right in its news story that might be enforceable against its competitors through misappropriation (Veruntreuung, Entfremdung, Unterschalgung)/unfair competition (torts claim). This is a matter of public policy to avoid the establishment of unfair competition that one news agency reaps profit off of the result of some other agency's work=> This is not enforceable against the public. => INS case is credited with extending the unfair competition doctrine into the IP arena. INS has no copyright, but it has an enforceable property right against competitors. Between copyright and public knowledge lies the "cloud" of misappropriation.

Kellogg Co. v. National Biscuit p. (254) 305 U.S. 111 (1938) => fight between Kellogg and Nabisco over “shredded wheat” and “pillow shape” => Does Nabisco have exclusive rights to SHREDDED WHEAT? =>NO - is generic term that it in the realm of public domain; can't have a trademark in scope; can one have a trademark in Xerox/Kleenex? Yes. One couldn't trademark photocopy though. Shredded Wheat is not of those, however.

Does Nabisco have exclusive rights to the pillow shape for biscuits? ==> YES. If customer connects the shape of the product with a particular brand! Is Kellogg engaging in unfair competition by using the name SHREDDED WHEAT and pillow-shaped biscuit? No. But the court is not holding that Kellogg is entirely free to use the name and the pillow shaped biscuit => Kellogg has to clearly distinguish between its product from Nabisco. The court sees that done by clearly putting Kellogg name on the packaging and by slightly altering the shape of the pillows. => Kellogg's and Nabisco do not have equal rights to the use. Kellogg has the obligation to avoid confusion (being the subsequent player in the game); Nabisco does not have any obligation to avoid confusion with Kellogg as it was the first to enter the market. => Kellogg was not engaged in an unfair competition similar to AP vs. INS in previous case. Kellogg did not simply use Nabisco shredded wheat pillows and repackaged it. Shredded wheat name and the pillow shape are in the public domain (public property)

p.257 Note 2: could one register trademark for "white bread"? => white bread is a generic term for the actual product and therefore not possible to trademark. But one could get a trademark for "White bread Shaving Crème" as that is more than just a descriptive term."Health Bread" might be possibly register able as trademark => test would be that a consumer would connect the "Health Bread" name with the product => "Chunky bar" might be able to be registered as trademark for a chocolate bar, where as "chocolate bar" would not be.

Trade SecretsTrade Secrets are a form of IP protection for PROCESSES that do not have patent protection. The thing about a patent is that no one else can use the product without paying license. Trade secret is sort of a pseudo patent. No absolute right to only use a particular mode of production as in a patent, but as long as DuPont takes reasonable steps to protect (trade secret) their procedure of methanol production, they can maintain - and the law will protect - the trade secret. The have to keep the method secret however. Advantage of trade secret over patent is there is no limitation in a trade secret. A patent runs out 20years from the application. Similarly, McDonalds did not file a patent for their secret sauce etc. A patent would have long run out but trade secret remains in tact as long as the company takes all reasonable steps to keep the procedures secret. A patent is not renewable! 20 years is a one time protection.

Exclusive right ( Violation of right by)

Public Domain

COPYRIGHT Misappropriation

REGISTERED TRADEMARK

Unregistered TM;Product design

PATENT Trade Secret

NO violating of a trade secret if one would essentially reverse engineer it. Also no violation if one on their own research comes up with the same method.

DuPont v. Christopher p.(258) U.S. Court of Appeals for the Fifth Circuit, 1970 => aerial photographs of methanol production plant to discover the mode of production = trade

secret => Aerial photograph here was impermissible. p.260 "but one may not avoid these labors by taking the process from the discoverer without his permission at a time when he is taking reasonable precautions to maintain its secrecy."

Taking a picture through a chain link fence might have been OK.Aerial photos from, e.g., google maps displaying the factory?? Perhaps. As long as DuPont is taking reasonable efforts to maintain its secrecy, any time the information is gained without permission from DuPont this might be a violation of trade secrets (guilty of misappropriation); only EXCEPTIONS are reverse engineering through a finished product or own research arriving to the same conclusion. (=> p.262 Note 2 => why is the airplane flying over DuPont property not trespass? See p.208 => three different theories on aerial trespass : 1)This was not privileged use of the airspace, therefore trespass. 2) theory we would need to know how high they were flying. 3) theory - DuPont might have not built all the way they wanted to use of the airspace so there would not be trespass => So trespass depends on which theory applies and the claim for trade secret seemed to have been the safer bet making the case.)

IP at the end of the 20th Cent. => Satire Jordache Enterprises, Inc. v. Hogg Wyld, LTD., United States

Court of Appeals for the Tenth Circuit, 1987(p.262) => case about designer jeans & humoristic response of other jeans company => Jordache is a registered trademark. So not a question as to whether there is an issue with the Jordache brand, but the trademark infringement claim is about the

Lardache brand. => Appellant produced and marketed apparel, much of which was identified by appellant's registered trademark "Jordache," throughout the world. Appellees marketed blue jeans for larger women under the name "Lardashe." Appellees' sales were limited to specialty shops in several Southwestern states. Appellant filed suit alleging trademark infringement in violation of the Lanham Trademark Act, 15 U.S.C.S. §§ 1051-1127, the New Mexico Trademark Act, N.M. Stat. Ann. §§ 57-3-1 to 57-3-14, and common law. The district court ruled that there was no likelihood of confusion. The court affirmed the ruling holding that the record indicated appellee's mark was a parody and not likely to cause confusion; therefore there was no dilution of appellant's mark. The court held that in order to be actionable, the association of the two marks had to tarnish or appropriate the good will of the owner's mark. The court also ruled that the owner of a mark suffered no actionable injury where marks were only used for parody purposes.AFFIRMED

Test: Likely to cause CONFUSION with existing mark (Federal regulation) => the mark is close enough to cause confusion with the registered trademark = federal act

DILUTION of existing mark's significant. (State statute)(1) actual / potential confusion => Federal Court already ruled that out(2) Loss in uniqueness and individuality (blurring)

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(3) Tarnishment => people getting offended at the satire of "Lardache" and would turn their mad towards "Jordache"; but Court says since we recognized Lardache as a SATIRE, those who would get offended indeed by the parody itself and turn that anger towards Lardache and not Jordache =>if there is dilution infringement on the existing mark; the new mark is hurting the registered trademark. p.263-64"Lardache" is a humorous wordplay on the original case; there is no confusion with the registered trademark; therefore no p.269 Note 3: => question of trademarking terms that might be offending, disparaging, scandalous, etc. Had/Would Washington Redskins lost/lose their trademark ONLY means that they lose Federal Protection of a registered trademark. They still have an unregistered trademark, as they so have occupied the market with their brand and no other entity could try to enter their market.

Feist Publications, Inc. v. Rural Telephone Service, Co. Supreme Court of the United States, 1991,p.269 => Issue of competing phonebooks => Rural claims copyright infringement of white pages content by Feist.

SCOTUS: compilation of facts are not copyrightable unless there is some originality in that compilation: 1) collection/assembly 2) selection/arrangement 3) in such a way that the results in some original work In white pages there is a standard way of doing it p.278 2nd paragraphMere assembly and arrangement "Sweat of the brow" => not a question of how long it took to make the product but how original the product is, in a question of copyright. Maps could be copyrightable if it has some unique feature to it that has not existed before. But a simply depiction of things that have been there before (location of buildings etc. ) is not copyrightable. => Rural Phonebook could potentially still claim misappropriation similar to AP case, albeit no copyright.

Inducement of copyright infringement Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LTD.

(2005), p.286 => trademark infringement case => Grokster distributed software capable of copyright infringement => If MGM can prove, that there is INTENT on Grokster to

create a product that is intended to infringe on copyright; Grokster is liable not because of promoting the product itself but by promoting the intentional use of it for copyright infringement. => Need evidence for the clear intention to provide aid in copyright infringement, then the providing party can be held liable for the infringement actually done by another third party. (p.292 Note 3 => are there instances of contributory infringement in trademark law? What for example? => cases against flea market managers, who provided space and opportunity for

small vendors to sell coca cola or so. Another example could be ebay, peddling trademark infringement )

Property in Living Things Pierson v. Post => obtaining a property interest in wild

animals => The one who legally captures, kills, or otherwise brings under control a wild animal gains ownership of itMost states claim some sort of sovereignty over all wild animals within its borders, including on private property. Trespasser generally are no allowed to keep animals they capture or kill!

Bilida v. McCleod => obtaining a property interest in tamed wild animals => Mere possession of a tamed wild animal does not confer a property interest in the animal, unless possession is pursuant to a state permit.4th & 14th Amendment rights claim - officials took the raccoon without due process. => If she doesn't have a possession right there cannot be an infringement on due process right. => Should Pierson v. Post have been taken into consideration? => Doesn't rescue her here, as that case discusses the use of wild animals as game v. taking here the animal as a pet. It is not eradication of Pierson v. Post. Furthermore, now we also need hunting permits (when Pierson was decided, hunting permits were not required.) so there is no help from that precedent. => Finding wild bird, or egg - taking it in and raising it? => no property and keeping because no permit by state. Or allowed if permit issued. => No permit required for raising domesticated animals. => p.302 Note 2: last question car accident with wild animal => State owns the carcass; Generally, states have sovereignty over wild animals within its borders! Officers can enter private property within reason to fulfill their profession.

Diamond v. Chakrabarty => obtaining a patent in living organisms created by humans through genetic modification Issue: can a living organism be patented => Patentable were things that involved any "new and useful process, machine, manufacture, or composition of matter, or any useful improvement"Bacterium in its existence was patentable because it was nowhere existent in nature. Chakrabarty was a "manufacture" or "composition of matter(One could disagree as Chakrabarty merely brought two bacteria together and therefore through natural cause created new bacterium . He did not take genetic material and worked from there. => Dissent: Congress should have decided about bacteria if it had the intent to allow. Court said that Congress left it open on purpose for courts to decide. Plan Patent Act 1930Was providing an alternative method of patenting things that were patentable already (plants)

Dissent: Patent law does not work for bacteria and denies patentability of bacteria in general; Congress should establish/regulate the law regarding patents)

Patent on bacteria instead of only the manufacturing process brings heavy favor on the inventor without having to be careful about potential contract language.

Rights to Human PartsRights, regarding organs

Sell Donate

NO sell of organ for transplantation 42 USC §274e; (in interstate commerce)

Research or for transplantation, as long as it does not endangers the life of the donor

No law prohibiting the sell an organ for research purposes ; problem might be the enforceability of such contract; Seems like Moore could have sold his cells for profit to USC for research

p.325 Note 2: Distinction between organs and replaceable/replenishable body products (hair, sperm, blood, parts of an organ like liver, female eggs); the former is not allowed (generally) to sell - the latter is permissible to sell(Note 2 - hypo: no claim for conversion. Usually there is no reasonable expectation that a customer wants to retain the cut hair. If one would state clearly that one would like to keep the cut hair - and the hair salon refuses or does not hand over the hair - probably a conversion claim. )

Moore v. Regents of University of California , Supreme Court of California, 1990 p. 318 => P suffers from Leukemia => has rare cells the treating doctor/D has scientific and financial interest in => takes body parts from patient without consent (against express prohibition actually) and creates cell line leading to patent worth $$$ => Moore has a claim for breach of fiduciary duty or lack of informed consent because a physician must disclose personal interest that may affect the physicians judgment => There are damages that one can regain for the violation of the fiduciary damages, but the more lucrative claim would be conversion claim!

Moore does not have a claim for conversion because he did not retain a property interest in the excised cells Claim goes probably in the direction of claiming that the cell line is his or at least that he has a property interest to the line because it was made with Moore's cells. => Decision not to assign property right to the cell lines; sort of part of a policy to foster research

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Had Moore created a contract with the hospital giving consent to allow the physicians to take the cells + spleen and do as they please, as long as he gets a cut from the proceeds, this contract would probably be enforceable, thus sort of giving Moore a property right (could enforce a contract if not property right) to the cells. In this case issue is likely the cell-line, which is not unique to Moore anymore or not exclusively consisting of his cells, ergo not his property.

Kurchner v. State Farm, District Courts of Appeal of Florida, 2003, p.327 => frozen sperm destroyed negligently => P claims for bodily injury => Court held that cells removed from the body (incl. sperm) are not bodily parts anymore but property => Sperm and other cells excised from the body are personal property => Once voluntarily removed from a living body, they are no linger part of the body. => No bodily injury, when cells have left the body or pacemaker.=> BUT bodily injury if cells are still inside the body => Damaging a pacemaker in the body - bodily injury; => False teeth once installed in the body

Whose sperm is it anyway in regard to personal property? => Depends on the state. In Washington community property exist so the sperm would probably belong to both spouses. In Florida (?) - no community property so property right is with the original donor

Distinction between Moore => here is a contractual commitment creating a reasonable expectation for Kurchner that the sperm will be retained/preserved => In Moore => Court said that there was no reasonable expectation to keep the cells or the spleen; BUT dissent argues there is an expectations

Newman v. Sathyavaglswaran, 9th Circuit Court of Appeals, 2002, p.328 => Case about coroners removing corneas of decedents without the consent of => Claim goes to 1982 takings claim - taking without due process; => California statute allowing such harvesting now declared in violation => A decedent's next-of-kin has a quasi-property interest in the decedent's body and body parts =>Quasi-property right = limited interest/rights in property => That interest extends to disposal of the remains (burial or cremation), transplantation, scientific research, or other culturally accepted procedures

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ESTATES IN LAND In the absence of heirs the testate succession laws in every state provides that the property escheats to the state. THE STATE IS THE FIRST (see Johnson v. McIntosh) AND LAST OWNER OF PROPERTY!!! Every state has intestate succession laws, declaring what happens when a person dies and leaves property behind. The law provides the line who can inherit in which row.No one has heirs until he/she dies!!! A daughter/son cannot be an heir as long as father/mother is still alive!! Those are "legal objects to bounty" (expected to be heirs in case of death)NO NEW estates may be created; if language does not fit, it will be construed as to fit within any of the existing categories! Courts prefer Fee Simple Absolute if transferring language fails to CLEARLY state the conditionality!! Rules of Construction: Fee simple Absolute > Fee simple subject to condition subsequent > Fee simple determinable Courts are protecting the interest of the grantee.BUT: Mayor and City Council of Ocean City v. Taber => if language strongly suggests fee simple determinable was the real intention of grantor, instead of fee simple subject to condition subsequent, court will honor that!

Quitclaim deed: conveys the grantor's entire title, interest, or claim in the property to the grantee, but without warranting that such title is valid. Often used for donations/gift situations and when the title situation is clouded.Warranty deed: grantor promises to warrant and defend the grantee's title and possession of the estate against all legal challenges arising under the deed. (p.344)

FREEHOLD ESTATES (one is the owner);Can be transferred as inter vivos gift!Fee simple Absolute

“O to A and A’s heirs”As close as a person can get to absolute ownership => the state is the first and the last owner of property

Fee simple subject to condition subsequent California has combined all three defeasible estate types into fee simple subject to condition subsequent. See p.354 fn4

"O to A and A's heirs, but if…""O to A and A's heirs, provided that…"

"O to A and A's heirs, on condition that…"A has an interest in fee simple, but if the triggering condition occurs, O, then O has a right of entry (a power to terminate A's estate; "O has right of entry" is label given in this case)

This does not happen automatically!!! O has to take some form of legal action (law suit, generally) to claim the right

A would prefer Fee simple subject to condition subsequent (O has to take action)O would prefer Fee simple determinable (automatically)

Fee simple determinable"O to A and A's heirs for so long as…""O to A and A's heir during …""O to A and A's heirs while…""O to A and A's heirs until…"A has an interest in fee simple unless triggering condition occurs. O has a possibility of reverter (if the triggering condition occurs, A's estate ends automatically and passes back to O or O's assignees)

Fee simple subject to executor limitations"O to A and A's heirs, but if B graduates from law school, then to B and B's heirs."

=> Executory interest is transferable. If B dies intestate before graduating, the interest disappears. Even if A sells property to some third person, if B graduates he has right to property! A cannot sell more than he/she has, in this case a fee simple

subject to executory limitation. "O to A and A's heirs for so long as the property is used as a dairy”

A has an interest in fee simple unless the triggering condition occurs.B has an executory interest (if the triggering condition occurs, the estate automatically shifts from A (or A's assignee) to B (or B's assingees)).O has nothing. Holder of executory interest has no monetary value!

Fee tail (not existent in majority of states)O conveys Blackacre to "A and the heirs of A's body." A has one child, B.”

A: Fee Tail In the vast majority of states (incl. WA) this is being treated as a fee simple absolute. Rhode Island still accepts this Fee TailB: has a remainder interest -- in Rhode Island; in majority of states B has nothingC: has a reversion interest -- Rhode Island; in majority of states O has nothing

Life estate -> for life of holder, or for life of another (pour autre vie)

1/7/2010 after 52min see podcast"O to A for life, remainder to B" -- A has a life estate. A can sell it to B, B can sell it to C, C can sell to D -- when A dies, the land reverts back to O.

Absolute restraint on alienation ("Not to be sold") is unenforceable => Court would not uphold such language as legally valid

Rule (Rules of Construction): (White v. Brown) p.3581. Where the decedent held a fee interest in

property, the will should be construed as passing a fee interest to beneficiary unless there is clear evidence of an intent to convey only a life estate.

2. It is presumed that a decedent dying testate intends to devise the decedent's entire estate and not to let part of the estate pass by intestate succession.

Traditional: ANY alteration of the property or to the use by the life tenant could constitute waste, and the remainder beneficiary could sue the life tenant for failure to maintain the property. In the past, starting timber harvesting without that there was a lumber business.Today: the actions of the life tenant has to devalue the remainder interestAny alteration or the use of the property gave traditionally raise to the issue of waste (because the question was going that it did not maintain the property or the maintain the remainder interest). Modern reading of the rule => it is not waste if it is actually going to serve the improvement of the property (in regard to the remainder interest) or at least not decline economic value of the property. Remainder interest holder and life tenants have usually competing interests. In general, a life tenant only has a current interest and would intent to strip the property of as much economic value as possible during his lifetime. Maximize current exploitationFee simple interest holder wants to maximize value of property and to maintain it as a going concern.

Ohio (and vast majority of states) -- waste action against a life tenant possible, but only if there is measurable damage the value of remainder interest. Where life tenant actually improves the value of the remainder interest a waste claim cannot be brought.

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If oil extraction, harvesting of timber had been done previously on the property then to continue the use of the property in this way is not waste. But to start such process initially this could be seen as waste, if it results in a decline in economic value. Committing waste to a life estate, can cause termination of interest before death. One cannot give away the life estate in a will, because it expires when one dies,

Leaseholds – Future Interests - Term of years- Periodic (month to month)- At will- At sufferance

"ALSO the land herein deeded reverts back to original plot in the event it is no longer used for Grange purposes" Offending language - is stricken and thus creates a fee simple determinable with a possibility of reverter (not affected by rule against perpetuities) WA LAW -- simply reverting the land does not convey the reverter. Under WA law, if one wants to convey the possibility of reverter, one must do so specifically!!!

Rule Against Perpetuities1/19/2010 2:46 PM Rule against Perpetuities => "no interest is good unless it must vest, if at all (or fail to vest), not later than 21 years after some life in being at the creation of the interest" some life in being = “a measuring life” => can be ANYBODY (“living descendent of Rockefeller” works) alive and specifically named in the conveyance at the time if the interest -> this life will determine whether and when the interest will vest or fail! This is not a rule of construction but in fact a rule of law!!!"rule of law that was created to promote marketability and development of present estates and limit deadhand control of grantors over future interest." p.394

Applies only to: Contingent remainders Vested remainders subject to open Executory interestNone of these interests may last longer than 21 years beyond the death of the last relevant person alive at the time of creation. If it

is possible for the interest to last longer, it is void from the tome it was implemented in the deed.

Does not apply to: Present interest Reversion Vested remainders Possibilities of reverter Reversions Rights of interest

United Virginia Bank v. Union Oil Co. RAP applies to void an option to purchase land tied to

an event (“when the city acquired the rights-of-way of proposed highways.”) not certain to occur w/in the perpetuities period.

The wait-and-see approach would have given 21 years from the date of the option agreement for the option period to begin. => majority of states would use this option (wait for 21 years and see if it turns out) - have adopted it - WA has not!!!!

Harris Trust & Savings Bank (p.402) Preference for the using technical (legal) meaning of

undefined term Presumption in favor of per stirpes distribution (rule of

construction - intent to follow the normal rule; if testator would have intended to use per capita (every survivor gets the same share) he should have specifically say so)

Rejected preference for early vesting of contingent remainder

Heirs alive when wife was alive Per stirpes -> sharing according to the first level of surviving If 3 children and one of them has 3 children, each child gets 1/3 share -- if the child with the 3 children of his own dies, those 3 grandchildren split the 1/3 share and get each 1/9 Contrast per capita: each holder of interest gets the same share, independent of where in the line.

CONCURRENT OWNERSHIP Duncan v. Vassaur (p.430) 1969 => Edgar conveys five lots from himself to himself and

his wife (Betty) as joint tenants 1971 => Betty shoots and kills Edgar After she's charged with manslaughter, she conveys

property to her dad, William William brings an action to quiet title

HELD => Murder terminates the joint tenancy, so half goes to Edgar's heirs and half goes to Betty But William should be allowed to offer proof that he was a bona fide purchaser for value (if he does so, he gets the entire property) Rationale: court is guided by the Oklahoma slayer statute (p.431)No person who is convicted of murder or manslaughter in the first degree under laws of this State ... of having taken … the life of another, ... The slayer statute does not apply to joint tenancy with right of survivorship; nothing says in the statute that a murder who is a joint tenant cannot take ownership of the whole of the property. But Court seems to argue that under this circumstance it would be possible as a joint tenant what is not possible under any of the other concurrent ownershipsMurder severs the joint tenancy, which means estate gets half of tenancy in common, and surviving murderer gets half of it, which Betty sells to her father. If he was BFD (see above) which will arguably very hard to prove - then he can get it all.

Marital PropertyTenancy by the Entirety (both real property and personal property)How is it created?

Conveyance to a married couple in a state that recognizes this tenancy (not all states recognize it; if one would not want to convey to tenancy on the entirety, it has to be stated explicitly "to A and B as tenant in common and NOT as tenancy by the entirety"!)

"Four unities" of time, title, interest & possession

May a co-tenant sell of gift the interest? No. The only way to sever the tenancy is by consensual

deed or divorce. Divorce converts ownership to tenancy in common.

May a co-tenant transfer the interest? See Podcast 1/28/2010A cotenant for tenancy in common (undivided 1/2 interest in property) or joint tenancy can convey the interest he/she owns ; not so with tenancy by the entirety. Co-tenant’s rights are just sticks in a bundle, so a lien can be attached to the property right of just one co-tenant -> US v. Craft

Liens and Escrows and Bears…. Lien = a legal claim on property for the satisfaction of debt

o A lien "attaches" to the property

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o Until the debt is paid, the owner of the property lacks clear title

Federal Tax Lien = a claim for the amount of unpaid federal taxes

o Federal tax liens attach to "all property and rights to property, whether real or personal"

o A federal tax lien usually takes priority over all other liens on the property

Escrow = documents, deeds, money, or other assets deposited with a neutral third party to be delivered upon fulfillment of conditions as agreed

Ownership transfer in case of death Elective Share Rules Many common law states permit the surviving spouse to

claim an elective share (or "forced share" or "statutory share") of the first spouse's estate in lieu of what they receive under the decedent's will.

o Only when there is a will, and the will provides for less than the statutory share

o Florida's elective share is 30% of the estate (if husband left testate 25% to his wife, the widow now can chose to either take the 25% or the statutory allowed 30%)

o Indiana's elective share is 50% of the estateo Oregon's elective share is 25% of the estate

Community property states generally do not have elective shares; the surviving spouse already owns half of the community property (the elective share is already sort of in place = 50%) WA, CA, ID, NV, AZ, NM, TX, Wisconsin, Louisiana

A Hitchhiker's Guide to Community Property Each Spouse owns an undivided one-half interest in

community propertyo Transfers of community property usually require

consent of both spouseso Either spouse may manage or control the community o A spouse may only devise or bequeath his or her one-

half of the community The spouses usually may enter into an agreement

concerning the status of the community property (basically mutually agree)

With some exceptions, property acquired during marriage is presumed to be community propertyo Exception for gifts to and inheritances by one spouse

that are not commingled with community funds (remains separate property)

o Property brought into the marriage remains the separate property of the original owner, provided the property is not commingled with community funds

Upon dissolution of the marriage, courts will make either an equal distribution (1/2 tenant, or 50/50 split of value) or equitable distribution of community property (Washington does equitable distribution - what's fair, taken into account duration of marriage)

O’Brian v. O’Brian (medical student in Mexico -> back to NYC -> divorce) is the medical degree any of these three

MARITAL PROPERTYEquitable division

SEPARATE PROPERTYAll to owner

NON-PROPERTYNot divisible or assignable

p.446 - New York law provides for the argument that a practice to license medicine is indeed property and even marital property (thus, providing wife with share of the worth of the license instead of reimbursement)

o Husband argues for only reimbursement of costs for achieving degree

Court holds that the computation of the worth of the degree is no big issue and assigns that medical degree is marital property

Meretricious Relationships in Washington In re Marriage of Lindsey (1984) - Washington adopts

general rule requiring a "just and equitable distribution" of property following a meretricious relationship

Connel v. Francisco (1995) = "income and property acquired during a meretricious relationship should be characterized in a similar manner as income and property acquired during marriage. Therefore, all property acquired during a meretricious relationship is presumed to be owned by both parties"

Gormley v. Robertson (p.470) = the meretricious relationship doctrine is extended to a same-sex coupleo Gives rise Pseudo-community property that falls

under the equitable distribution in Washington upon dissolution

o Test for what might be a meretricious relationship: p.470

o Question remaining though, when does a meretricious relationship start, because if there were assets that either member of the relationship brought into the relationship this would remain separate property

What if one of the parties dies intestate - does the other member automatically get the other 1/2 of the community property??

How can we assure that if one party dies, the remaining party gets the property? =>Write a will

Cohabitation agreement (accepted by courts) - reaches

some agreement what to do with the property WA intestate succession statute provides the same rights to registered domestic partners that spouses have. Federal Law still does only cover for married couple as being 1 man and 1 woman.Community Property of Registered Domestic Partners (WA)RCW 26.60.030 permits certain couples to enter into a "state registered domestic partnership"

Must share a common residence Both must be age 18+ Neither is married to (or in a state registered domestic

partnership with) another Both are capable of consent They're unrelated (not closer than second cousins) They're either of the same age sex or one is the age 62+

RCW 26.60.080 = "Any community property rights of domestic partners … shall apply from the date of the initial registration of the domestic partnership of June 12, 2008, whichever is later."

Leasehold Estates are not-freehold estateFour Leasehold Estates

Tenancy Duration Termination

Term of Years (independent of time it is always called "term of years")

Fixed period as agreed by parties

Ends automatically at the end of term; no need for notice by the either landlord or tenant

Periodic Tenancy (tenant goes to landlord and offers $200/month for certain room - this would be a periodic tenancy)

Fixed period of time (as agreed by parties) that repeats

Ends when either party gives notice at least one full period in advance

Tenancy at Will Indefinite At common law, ends automatically ("when landlord says 'git'"). Some states require some minimum advance notice (30 days)

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Tenancy at Sufferance

Begins when tenant holds over (stays in property longer than agreement lasted)

Ends upon eviction or when parties enter into new arrangement

Always determine whether the agreement is a lease in the first place.

Cook v. University Plaza p.478 LEASE transfers exclusive possession of specifically described real property from landlord to tenant.LICENSE is a nonpossessory right to use property. In an agreement, whether it is a license or a lease, is not

determined by what the parties call the form but what the substance of the agreement is

But what they call it might be indicative of the intentions of the parties and thus one aspect to be considered.

One reason why court saw this to be license was that dorm operator could move people around freely and to also house several students in the same

Why do we care about whether its lease of license -- the exclusivity factor/degree of control o Lease = exclusive possession; property owner needs

permission from tenant to enter propertyo License is not exclusive right to property

A Statute of Frauds requires certain agreements to be in writing In Vermont, "an agreement to lease for more than one year

must be signed by the party to be charged." (p.482) Just because there is a lease that violates the statute of

frauds, does not mean there is no leasehold at all, but rather a year-to-year tenancy, month-to-month tenancy, or tenancy at will

Courts look at what is commonly done with farming operations -- usually year to year, thus court sees this to be a year-to-year tenancy (plus the talk about the annual rent)

Landlord and tenant agree that as of March 1, tenant will take possession of the property and they agree upon fair rent, but they do not agree upon duration or precise rento At the time the y reach the agreement, there is a

tenancy at will -- until there is duration (fixed length or period over which rent will be paid) and the amount being paid

o Comes March 1 - tenant gives landlord check with $1000 rent for the month - landlord accepts

o From now this is a periodic tenancy by actions of the landlord and tenant as they have now established

duration (assumed it will be month-to-month) and the rent (assumed at $1000 for duration)

FAIR HOUSING ACT, 42 U.S.C. 3604 (p.483) Illegal to condition a dwelling's sale, rental, negotiation,

terms and conditions, availability, advertisement, or financing based upon certain prohibited characteristics

Prohibited Criteria:o Race, color, religion, national origin (since 1968) o Sex (added in 1974)o Familial status, disability (both added in 1988)

P has to make prima facie case for housing discrimination: P protected class? P qualified to rent? Was P rejected? Remained the housing or rental property available

thereafter? -> an insignificant amount of time is sufficient (according to the court in Sullivan v. Hernandez p.484)

P does not have to show evil intent by the landlord!After that has been met, the burden of proof shifts to the defendants:

D has to offer a legitimate, non-discriminatory explanation for rejecting P

=> D does so and brings forward that the other applicant was financially more responsible/more qualifiedo Test is not whether the other applicant was in

fact more qualifiedo Statute tries to get intentional discrimination

Burden proof back to P that D’s explanation is pretextual ("unworthy of credence")Attorney General v. Desilets ->p.488 MA case about discrimination based on religion => Test: When an anti-discrimination statute substantially burdens the free exercise of religion, the state can enforce the statute only if it demonstrates a compelling state interest:First prong: Defendants are indeed sincere in their religious beliefs There is a substantial burden to the defendants It is offensive to defendants personally and they might be

stigmatized by other members of the same religion for having to rent people whose lifestyle offends the religious beliefs

Second prong: Compelling state interest usually only in cases of race

discrimination Important state interest - generally for gender

discrimination

General state interest - for marital protection or discrimination

Since this is only a question of whether to allow summary judgment and no finding of fact had occurred, case is sent back

Delivery of Possession American Rule = Landlord is only required to place tenant in

legal possession of the premises (only right to occupancy) English Rule (most states, incl. OK) = Landlord is required to

place tenant in actual possession of the premisesPodcast 2/4/2010 1:45 PM

Condition of premises

The Covenant of Quiet Enjoyment=> works as a defense in a lawsuit by landlord over unpaid rent The landlord promises to let the tenant have exclusive

possession of the property Tenant remedies for breach

o Injunction o Damages o Lease terminationo Withholding or abatement of rent

Courts acknowledge that the condition of the premises or the landlord's behavior may be so bad that there has been constructive eviction of the tenant; For constructive eviction defense -- tenant has to evacuate the premises

Violation of covenant: Reclaiming property before the lease term is over Or somebody else asserts a superior right (superior to the

landlord) of occupancy over the property Every state implies that this covenant is part of every lease

arrangementJustice Holmes in Smith v. McEnany: Any encroachment that is more than de minimis (= trivial) totally suspends the obligation to pay rent, even if the tenant has beneficial use of the remainder of the premises. The tenant thus does not have to pay rent; doctrine of quiet enjoyment exists. What if covenant of quiet enjoyment did not exist - what could a tenant then do? => Bring claim for trespass; it is largely accepted that tenants can bring claims for trespassSome states move away from this absolute rule and require a test whether the encroachment infringes significantly with the enjoyment of the property p.500 (Notes) The Implied Warranty of Habitability

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Under the IWH, the landlord must deliver and maintain a habitable premises for the tenant

The premises is habitable if it is safe, healthy, and otherwise fit for human occupation o Many courts look to local housing codes as the

baseline for habitability The tenant is obligated to notify the landlord of any defect

that might result in breach of the IWH The IWH generally applies to residential leases (some

states impose a warranty of suitability for commercial leases)

As baseline for breach of duty by the landlord the court uses local housing codes. Landlord has to keep the apartments up to code throughout the term of lease. For commercial property the test is whether the property is generally fit for the intended use!

The general, but not universal, rule in this country is that a landlord is not chargeable because one tenant is causing annoyance to another (p.502 Footnote 4)Why difference in Blackett v. Olanoff Landlord could reasonably foresee that the nightclub that he

rented out could potentially disturb the tenants (would unreasonably interfere with the resident tenants enjoyment of the property)

When one rents out neighboring apartments, landlord can usually not reasonably foresee that there will be unreasonable interference with enjoyment of property by the other tenant

p.503 Note 1 -- landlord is responsible for actions of:o The landlord himself,o The landlord's successors (person who gets title,

authority, or other rights from the landlord), oro Paramount titleholders (persons who have better title

to the premises than the landlord) -- e.g., landlord only believes that he owns land but mistake in deed in property description, and true owner comes forward; adverse possessor, where statute of limitation has not run yet -- adverse possessor in his offensive behavior leases out property but along comes the true owner.

Landlords today have a duty (in the past none) to reasonable care over common areas -- standard is, is it safe and is it habitable; vast majority of jurisdiction duty of landlord to keep common areas safe Duty Not to Rent to Gang Members? -- No Duty to Evict Gang Members Tenants? -- Not in this case

(Castaneda v. Olsher); but there might be a duty for landlord to evict tenants in order to protect other tenants when violence against others is "highly foreseeable" (p.521)

Tenants use of premises ==> there is NO duty for the tenant to tell the landlord what the premise is going to be used for; it's up for the landlord to ask! But if landlord asks, misrepresentation or even half-truths by the tenant might give rise for rescission! Lease prohibiting certain use(e.g., any business related activity) read literally -> activities would be prohibited, but it might be wise of the landlord not to enforce the restrictions too closely if the impact of the business activity is not too harsh Impact due to increased noise, dirt, occupied parking space,

added safety issues Should only enforce where there is a material breach, with

significant impact on the quiet enjoyment of the property by the other tenants.

When does property become a FIXTURE? Degree of attachment (how firmly attached to the structure

of the land?) Degree of adaptation (to what degree is the property

specifically adapted to the property?) Installer's intentionSee p. 526 => test is valid in all (almost all) statesFixture is personal property that has been so sufficiently attached to the property that it becomes real property.In contrast trade fixtures -- property that has not been so sufficiently attached to the property and can be removed by tenant at the end of the lease. If changes to property are not specifically addressed

in lease, then as long as the permanent value of the property is increased by the actions, it is not prohibited -- but the tenant cannot remove these improvement after ending lease

Destruction of rental property by fire etc. Rental property burns down -- tenant remains at duty to pay

rent under general American and English law (White v. Molyneux)

Under common law -- neither landlord nor the tenant have the duty to rebuild for the duration of the lease; tenant can - under the discretion of the tenant - rebuild, but has no claim against the landlord for the cost of the rebuild If the improvement indeed constitutes a waste of/to the

land, then the landlord has an action against the tenant Not all states follow the general common law rule that the

tenant has to keep paying rent even if the premise is destroyed; e.g., in New York when the damage was not due to the fault of the tenant and the premises become untenantable and unfit for occupancy

Just because the landlord has an insurance against destruction does not free the tenant from having to pay

Virtually every state looks first at the lease agreement -- if the lease agreement does not has any provisions as to the duty of pay in case of destruction of the property, then either the common law rule will be applied by the courts or the statute applies

The lease provisions will always trump the common law Lease provisions in case of property destruction: Note 4 p.531 a. If completely untenantable -- lease will terminate at the

date of destruction; if property is only partially destroyed - rent will not abate

b. Gives a lot of lenience and power to landlord as he/she can decide to either 1) terminate the lease upon notice to tenant or 2) cause the property to be repaired and rent would only not be due for as long as the premises remain untenantable

Landlord Options at Tenant Breach Do nothing & collect rent (when the tenant should show up

after a while, the tenant can theoretically re-occupy the property)

Re-lease the premises and release tenant from obligation Re-lease the premises for tenant's benefit Recover possession of property through eviction

proceedings and collect full rent!! (passage in the lease of Holy Properties v. Kenneth Cole that provided that the tenant remains responsible for lease after termination...or something like that. The court thus likely looked strongly at the lease agreement in deciding the case.)

BUT:Texas Property Code 91.006Landlord has Duty to Mitigate a. A landlord has a duty to mitigate damages if a tenant

abandons the leased premises in violation of the leaseb. A provision of a lease that purports to waive a right or to

exempt a landlord from a liability or duty under this section is void.

Self-repossession or self-help eviction generally is not permissible. Eviction processes only through proper due process/proceedings. (Only some jurisdictions do allow this procedure still but then they are only allowed to do so without breaching the peace -- no kicking down the doors etc.)Changing locks on tenant without providing a key can equal wrongful eviction! (Hinton v. Sealander Brokerage Co.)Leaving personal property can be seen holdover in terms of the lease, or as trespass for sake of calculating damages (no full rent; for holdover tenant would need to occupy the property).

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=> Majority of the courts: landlord has no duty to safekeep personal property after lease expired. If landlord disposes of tenant’s stuff before lease is up -> conversion claims by tenant.

=>Minority of jurisdictions impose a bailment duty on the landlord Sublease vs. AssignmentOld English RULE:If duration of take-over is the entire rest of the first lease agreement, then it is an ASSIGNMENT.But if the there is even an hour time possibility of reversion of the lease back to the first lease agreement, then it's a SUBLEASE.

Jaber v. Miller (p.540)AK Court abandons old English rule but rather looks at the intent of the party. Pro ASSIGNMENTt: language in the agreement =>,Jaber

transferred interest for the full rest of the time and Norber & Son pays rent to the original owner

Signs for a SUBLEASE: provision in agreement between Jaber and Norbor & Son => Jaber could take over the lease again should the subsequent party fail to pay rent, and Miller / Norbor & Son paid "rent/fees" to the original tenant.

Court: more an assignment than a sublease due to the 1) language describing the document and 2) the context of the documentPretty much any lease agreement these days specifically prohibits the possibility of assignment without the consent of the landlord! A landlord can refuse but only if he has a commercially reasonable objection (CA, minority rule)Majority rule: landlord can refuse consent for assignment or sublease of property for any reason

Real Estate ContractsAfter signing the real estate contract and until the day of closing (EXECUTORY phase): Buyer has equitable title by the time the sales contract is

executed; has beneficial ownership of property = enforceable right of possession of the property

Seller has legal title -- Blackacre is still legally owned by seller; having legal title means = have the ability to enforce payment under the real estate contract

Neither one holds all the sticks in the bundle at this point in time

After signing => inspections, title search Last phase is CLOSING:

o Seller conveys title to buyer

o Buyer furnished the consideration = pays the down payment and the bank wires the money; at closing these things happen parallel

Essential Contract terms required in a real estate agreement (in CA): -> in disputes – Statute of Frauds + parol evidence Identity of buyer and seller Purchase price Description of property

Risk for damages during phases of Real Estate PurchaseDuring executory contract phase (after sales agreement but prior to closing) - the right to possession determines who bears the risk of damages Risk of damage to property is with the party in

possession Who has the legal right to possession to property

is determining factor for who carries risk Majority of states place the risk of damage or

loss on the buyer -- because from the moment of signing the real estate sales contract the buyer has equitable title (unless the real estate contract provides for the contrary!!!)

Massachusetts: risk of loss remains with seller until closing, when the title transfers

Minority (CO) - the party that had legal right to possession to property at time of damage carries the risk

seller dies testate (all of real property to X and all of personal property to Y) during executory phase => Y gets the moneyo Seller has legal title = right to receive payment =>

personal property; legal title is leverage to enforce the payment

o Seller does not have interest in real property but in personal property

What if buyer dies - same hypoo Since buyer has equitable title in property (=

interest in real property) => property would pass to X and not to Y, who gets personal property

Property QualityGenerally: => caveat emptor (NY strictly so); but if seller actively creates a situation that might have an impact -> Ct could award remedy in equity (rescission of contract) in the interest of justice -> Stambovsky v. AckleySeller has to disclose: Latent/material defects

Seller does NOT have to disclose defects: If found during reasonable inspection or could have

been found reasonably during inspection Or there was an "as is" clause (unless there is fraud)

CA law: (p.570) Seller has to disclose when: Material effect on the value of the property Has to be the type of fact that is really only

known/peculiarly within the knowledge to the seller, not within the reach of diligent attention of the buyer

(could the reasonable buyer have found out about issue)

Q: Is issue within the duty of buyer to investigate?

Recording System(Recording acts: p.578)Understanding Recording Acts O conveys Blackacre to A O then conveys Blackacre to B.Who has title to Blackacre? (p.579)(Pure) RACE STATUTE First to record has title Doesn't matter whether B knows about conveyance to

A - if B knows about prior conveyance and beats A in recording

NOTICE STATUTE B has title as long as B is a BFP (acts in good faith

and is a purchaser for consideration) who takes without notice of the earlier conveyance of title to Ao Notice either Actual Notice (actual knowledge of

conveyance), Constructive Notice (knowledge buyer B would have if he went to recording office to research the real property and would have learned from searching any other public record), or Inquiry Notice ( buyer finds out other facts that suggest that someone might have an unrecorded interest in property; buyer has to duty to further investigate; most importantly -- duty to inspect property the land;

o Any one of which is sufficient to give notice in states that have notice statute

o B does not have to record in order to win; even if A later

RACE-NOTICE STATUTE => WA

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B has title as long as B is a BFP who takes without notice and records before A; B must record before A in order to win!

Notice is always at time of conveyance!! RCW 65.08.070: Real property conveyance to be recordedConveyance of property as a gift does NOT qualify under Notice statute! There has to be consideration by B in order to prevailSHELTER RULE -- applies generallyIf one takes from the party with superior title, one takes superior title!

All deeds have to be delivered to come to life!Delivery = actual surrender of dominion and control over the deed coupled with intention to convey property. No delivery of the title = conveyance/transfer/title is void Once title has been delivered, there is no take back; the title has been conveyed for good; if there was an undue influence in the conveyance = the title becomes voidable

LAND USE RESTRICTIONSPrivate Restrictions Easement ([restrictions to] specific use of another's

land) Profit (remove things of value from another's land) Covenant ([=promise with] restriction on use) License (revocable, nonexclusive right to use)

 Public restrictions Zoning (permitted use, size, or improvement) Public Lands  The Vocabulary of EasementsSERVIENT and DOMINANT estates Servient estate = land subject to the easement Dominant estate = land benefiting from and easement

appurtenant  

APPURTENANT or IN GROSS Easement appurtenant benefits the owner of the

dominant estate Easement in gross benefits particular person(s) or

corporations 

AFFIRMATIVE or NEGATIVE

Affirmative = permits holder to specific use or servient estate

Negative = prevents owner of servient estate from specific use(s), e.g. promises that neighbors will not block light, or not to interfere with airflow (wind), not remove support of property, or not to interfere with water flow as in a river running across the properties

Owner of servient property is responsible for maintaining the easement in order to prevent harm to the easement holder/owner of the dominant property.An easement is a property right that CANNOT be unilaterally revoked by the owner of the servient property. A license CAN be revoked unilaterally by the proprietor.

Hagan v. Delaware Angler's & Gunners' ClubIssue is then whether this is a profit appurtenant or in gross If it is a profit appurtenant - the profit is attached to

the land and the conveyance of land would also convey the profit

If it is a profit in gross - conveying the land does not automatically gets conveyed with the land

Rule here this is a profit in gross The intent of the parties is not entirely clear and all

that the court has is the language of the document The right to fish the lake does not raise the value

Courts will look to the parties' intent determining whether a profit or an easement is in gross or appurtenant and at the potential loss of value or benefit connected to the land If there is significant benefit or value to the land by

the easement or profit, then it is considered to be appurtenant

If there is no such benefit to the land itself, i.e., would a buyer not inherently rely on this specific right or understand this to be absolutely connected to the land, then a court would see this as a profit in gross

p.594 podcast 2/23/2010 2:00 PM Court looks at the intent (and mutual expectation) of the parties and then again to the value of the easement to the owners Beach access is of value to the property owners and the owner of the servient estate was OK with the ongoing use of the easement to the beach

In distinguishing between the in gross or appurtenant overarching is the value of the easement to the servient

land; presumptions are just that and more tie breaker than dominating rules.

2/23/2010 2:20 PM Easement cannot be given or reserved to property one does not own; no easement conveyable to the benefit of a third party. New York = old common law ruleModern courts today (most states) allow the conveyance of easements to the benefit of third parties that have no attachment to the servient land. Original retained easement in gross = personal right to enter the land, but this easement is very limited and might be conveyed Easements are generally not exclusive. Easements generally do not mean that they are to the exclusive use of the owner of the easement holder. The owner of servient land can give additional easements as long as this new easement does not substantial interfere with the enjoyment of original easement given. This is default rule! Parties can still opt out of default rule by contract.

Can the owner of the servient estate change the location of a right-of-way easement? Yes, provided: It’s at servient's owner's expense Relocation doesn't significantly reduce easement's

utility Relocation doesn't burden the easement owner Relocation doesn't frustrate the easement's

purposeRestatement text If a state does not follow the Restatement - WA & GA -- mutual assent is required for a change of the location of a right-of-way easement; MacMeekin v. Low Income Housing Institute, Inc. (Wash. App. 2002) = NO, there needs to be mutual consent (court expressly rejects the Restatement rule) Christensen v. City of Pocatellop.608  Easement primary made for egress and ingress Idaho (most states) adopt Restatement -- if easement

is for the benefit of the dominant domain then this easement can only be used for the dominant estate and not for the benefit of any other third property

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o City wanted to use the easement for other purpose exceeding the original intent

IMPLIED EASEMENTSThe law generally hates implied easements!  Implied easements1. Easement by prescription / Prescriptive Easement =>

same elements as adverse possession; generally courts have shorter timeframes for acquiring easement because it's only

2. Easement by Necessities (when property owner separates property and conveys the landlocked parcel)

3. Easement Implied from Prior Use 4. Easement by Estoppel

An easement by estoppel may be found when an owner of property misleads or causes another in any way to change the other's position to his or her prejudice (i.e. detriment). Restatement adopted this Ohio rule, but courts are encouraged to be careful adopting this rule. Hidden easements (i.e. easements not reflected in the deed but offered only orally out of neighborly friendliness) are highly discouraged as they are not recorded and do not aid in the policy of documenting property ownership.

Prescriptive Easement Actual Continuous Open and notorious Hostile

=> No requirement of exclusivity!!!! (as opposed to adverse possession in fee simple) Permissive use can never lead to prescriptive easement!  Easement by Necessity Prior unitary ownership (unity of ownership = one

owner owns piece of property; diverts the land and conveys a landlocked parcel; if property owner landlocks himself by conveyance - easement by necessity without reserving it during conveyance cannot be claimed/implied!)

Strict necessity (landlocked) => only if there is absolute necessity to access the property if there's any other way of access then an easement will not be granted

 Easement implied by from Prior Use

Prior unitary ownership Easement-like use already in existence Continuous Apparent prior to severance Reasonable necessity

=> if necessity ends - the easement ends as well

Schwab v. Timmons (case about property at lake with high bluff) No easement from prior use -- road plaintiff wanted to

extent was never prior in use to access the parcels of the plaintiffs over the defendants parcel; US had unitary ownership but the prior use easement was not given

No easement by necessity -- when plaintiff originally bought the property, there was access to public but they land-locked themselves by conveying the part of the land that had access to the public road

Geographical barriers alone do not warrant an easement by necessity in Wisconsin

A ticket of admission creates a license, which the property owner may revoke at any time. An easement is a property right that CANNOT be unilaterally revoked by the owner of the servient property. A license CAN be revoked unilaterally by the proprietor.

Kienzle v. Myers (case about sewer pipeline between neighbors)Issue essential is this a license or and easement:Prescriptive easement? – No! Entrance of the pipeline was permissive; no hostility initially when sewer pipeline installed. No unitary ownership when pipelines where created => no easement by necessity or easement implied from prior use. Court "offered" ruling argument for Easement by Estoppel: it is essentially a fairness argument and balancing. Hook-up to neighbor's sewer line  Easement by Estoppel: Owner of dominant estate granted permission Reasonable Reliance activity by the owner of the dominant estate

on the promises  An easement by estoppel may be found when an owner of property misleads or causes another in any way to change the other's position to his or her prejudice (i.e. detriment).

Termination of Easement Expiration of a fixed term Mutual consent Merger (one owner of dominant and servient estates) Prescription ( Forfeiture Estoppel (servient owner reasonably relies on acts or

statements of holder [owner of the dominant property])

Condemnation by the state (if US gov't takes over the servient estate through eminent domain, some reparations (or so) may be required to be paid to the beneficiary of the easement; and easement is a property interest!)

Vermont: "In order to establish an abandonment there must be in addition to nonuser, acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.

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Neponsit Property Owners' Association v. Emigrant Industrial Savings Bankp.633 OVERVIEW: A realty company conveyed by deed several parcels of land developed by it for a residential community. The deeds contained a covenant, that by its own terms was a lien that ran with land, and bound all subsequent to an annual fee for the purposes of maintaining the community's public amenities. Plaintiff was assigned the interest in a covenant; defendant obtained land subject to the covenant from a judicial sale. In plaintiff's action to foreclose upon its lien, the trial court struck defendant's various

defenses, its counterclaim against plaintiff, and denied defendant's motion for judgment on the pleadings. On appeal, the court affirmed, holding that: (1) defendant's defenses were properly struck as redundant of plaintiff's allegations in its complaint; and (2) plaintiff's covenant ran with the land as it was clearly intended to run with the land, touched and concerned the land, and there was privity of estate between the parties. OUTCOME: Judgment affirmed; defendant was properly denied judgment on the pleadings as the evidence showed that plaintiff's lien was a valid and enforceable covenant that ran with the land. Additionally, defendant's defenses were properly struck from its answer as redundant because they were merely argumentative denials of allegations plaintiff's complaint.

Biggest issue here is, whether the covenant "touches and concerns' the land -- court here holds "YES"Test:"Does the covenant impose, on the one hand, a burden upon an interest in land, which on the other hand increases the value of a different interest in the same or related land?"If the covenant creates a mutual burden AND benefit, then the covenant runs with the land. Covenant Intent required - can be inferred from covenant itself or from the actionsTouch and concern requiredPrivity required -- but not necessary when there is an agent acting on behalf of the

Tulk v. Moxhayp.639Podcast: 3/2/2010 1:55 PM Since the original covenant was not given from a

landlord to a tenant Court cannot enforce covenant by law, but they can -

and do - enforce the covenant by equity. This created equitable servitude => has all the same

o Privity is not an issue with equitable servitudeo Promise made can be

Is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" (ie. a future owner will be subject to the restriction) in equity.

Servitude = all restrictions on land (i.e., covenant, profit, easement)Equitable servitude = covenant without privitySuing for damages => Real covenant enforced Suing for injunction or specific performance (or any other non-equitable damages, remedy) => suing for

enforcing equitable servitude does not require the proof of privity! Alternative to assure enforceability specific use of land => create defeasible fee

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