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SPRING 2008 PROPERTY OUTLINE
PROFESSOR KEN KRISTIL
I.
INTRODUCTION AND OVERVIEW OF PROPERTY LAW
a. 5 Elements of Copyright
i. Original
1. “Minimum levels of creativity & originality” (intellectual effort)
2. translation to Spanish will do; Feist case directory with ratings
ii. Work of authorship (literary; musical; pictorial; choregraphic; movie;
architectural)
iii. Fixed
1. Class lectures not pod cast can
iv. Tangible medium of expression
v. Which can be perceived, reproduced or otherwise communicated
b. 8 Exclusions to Copyright Protection
1. Ideas
Procedure
Process
2. System
MOO
Concept
Principle
Discovery
c. 4 Elements to Trademark
i. Word, name, symbol or combination thereof (shape coke bottle, color dry
cleaning)
1. Qualitex held color can be trademark as long not functional.
ii. Used in commerce or intend to use in commerce
iii. Identify and distinguish goods sold by others
iv. To indicate the source of the goods
d. General Rule Distinctiveness
i. An identifying mark is distinctive and capable of trademark protection if it is
either
1. Inherently distinctive: unique, immediately distinguishes
product/service from others;
2. Acquired secondary meaning: consumers start to associate mark with
one company as to everyone else.
e. 5 Categories of distinctiveness
i. Generic: (aspirin) Refers to category/class; Not registrable Never Inherently
Distinctive
ii. Descriptive: (Nice N Soft or Nailz) M/b registrable; not inherently distinctive
so needs 2nd meaning
iii. Suggestive: (cooper tone) suggests identity: Inherently distinctive Always
registrable
iv. Arbitrary(Apple Computer) no connection to prod: Inherently distinctive
Always registrable
v. Fanciful: (Exxon) make up word: Inherently distinctive Always registrable
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f. Trademark Registration
i. Arise by use; however there are 3 exceptions to registering trademark
1. So resembles a mark that it is likely to cause confusion, mistake or
deceive;
2. Merely descriptive (Zipper or Nails)
3. Functional (necessary for operation red fire equipment)
4. But you can register it if it becomes distinctive thru 5 years continous
use.
g. What someone has to do to infringe on trademark
i. Use of reproduction, counterfeit, copy colorable imitation
ii. Use mark in connection with packaging, advertising
h. Remedies for trademark infringement
i. Injunctive relief and damages in profit if used intent to cause likelihood of
confusion
i. Trade Dress
i. Overall appearance of product v. trademark one specific product.
ii. Packaging business. Distinguishing goods or service of business from others.
j. Unfair Competition
i. Cannot use trademark, description or words cannot use things that would
misrepresent your product or someone else’s product. If u do so, you are
liable for penalties under act.
II.
PRINCIPLES OF PERSONAL PROPERTY LAW
a. Possession
i. 5 Types Possession:
ii. Abandoned – 2 flavors
1. Intentional relinquishment –throw it away; “I don’t want this
anymore” (F-L-ROW)
2. Involuntary relinquishment – left w/o hope of obtaining it beer ship
(O-F-L-ROW)
iii. Lost – owner has involuntary parted carelessness (O-F-L-ROW)
1. Court presumes that property is lost if cannot be determined
2. Armory found the jewel and reduced it to possession he had superior
interest to everyone except true rightful owner.
iv. Mislaid – intentionally put into place forgotten (O--L-F-ROW)
1. Carefully bundled and found inside receptable
2. Place where property found important (Benjamin wing plane)
3. Presumed to have been left in custody of landowner; true owner return
v. Treasure Trove – type of mislaid property; buried or hidden treasure form of
gold coins cash; owner unknown; “carries with it thought of antiquity”. (O-FL-ROW)
vi. Fugacious property: not yet owned property; no one claimed
1. wild life, intentionally abandoned property, oil, gas, baseball
2. Rule of capture – a property interest in a fugacious thing is gained by
the actual possession/capture of the thing.
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a. 2 Variations
i. Partial or probable capture: possession does not
determine ownership. Whaling case.
ii. Equitable Division: resolve competing claims.
1. Rule: significant but incomplete steps to achieve
possession and is unlawfully interrupted, actor
has legally cognizable pre-possessory interest in
property.
b. Bailment
i. Definition: Contracted (implicit or explicit) delivery of property for some
purpose and after that purpose is filled, the property is redelivered to the
bailor, or otherwise dealt with according to bailors directions or kept until
bailor reclaims it.
1. Bailor: person who gives property
Bailee: person who gets the
property
ii. 2 Flavors Bailment
1. Gratuitous Bailment: keep it for free; benefits bailor only; liability is
less than bailee for hire, bailee must exercise slight diligence std care
2. Bailment for hire: both receive benefit; bailee must exercise
reasonable care std
a. Constructive bailment – (Shamrock hotel purse) court
constructed bailment finding implied agreement because nature
of relationship and implied delivery and acceptance of purse.
Courts willing to find bailment exist in order to protect
property; a landowner or finder is a bailee taking care of true
owner.
iii. Proof of Liability: Rebuttable Presumption of Negligence by Bailee
1. It is presumed that bailee is negligent if bailor establishes a prima facie
case for bailment which is 4 Prima Facie Case for Bailment.
a. Express or implied agreemt bt bailor & bailee to create
bailment
b. Delivery of property to bailee in good condition
i. (better condition when returned; damages = difference
in value)
c. Bailee’s acceptance of property
d. Bailee’s failure to return property OR returns it damaged
condition
2. Look evidence; large parking lots no agreement; security
c. 4 Transfers of Personal Property
i. #1 Unauthorized Transfers to Good Faith Purchasers
1. General Rule: Purchaser of goods gets all title seller had or had power
to transfer.
2. General Rule: Once void always void
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3. Void title is when transferor lacks authority to transfer, does not have
title (Thief steals piece sells it to unsuspecting buyer, buyer has void
title and bears loss.)
4. Exception to rule of void title by an unauthorized seller
a. Voidable title: Seller can pass better title if certain conditions
met
i. If conditions met, title can become good and true owner
loses against buyer
ii. If conditions not met, once void always void applies.
5. 3 Requirements Voidable title UCC 2-2403:
a. Entrustment – delivery of goods by true owner OR true
owner’s acquiescence in the retention of possession;
b. To a merchant who deals in goods of that kind
c. Sale to good faith purchaser for value (BFP)
i. If purchaser is individual “honesty in fact” standard:
including legitimate intention to buy and pay market
value of goods
ii. If purchaser is merchant: Requires honesty in fact and
complies with commercially reasonably requirements in
industry
iii. A+B creates voidable title & A+B+C coverts it to good
title.
iv. If purchaser is BFP and is buying something from a
merchant that has voidable title, than that purchase
makes it good so that purchaser has good title and can
transfer good title and original owner has to seek
recourse from others.
d. Entrustment Cases
i. True owner must consent to the transfer of goods to the
person from who the good faith purchaser bought them.
Kenyon: salvation army messed up sold painting; court
said buyer had no title.
e. Purchaser cannot take good title from a thief. Brown
University.
ii. #2 Transfer of Personal Property thru Security Interests:
1. Creditor can collect debt by obtaining interest in property, not full title,
which permits the seizure or repossession of property to satisfy debt.
2. Perfection of a security interest
a. Requires a mandatory filing of financing statements; if not,
cannot enforce it against subsequent purchasers.
iii. #3 (5) Remedies for Intereference of Personal Property
1. Trepass
a. direct injury chattel. P has right of possession & D willfully
interferes w right.
b. E.g. Picasso painting cut up intentionally.
2. Trespass on case
a. indirect injury to chattel (negligence)
b. E.g. take Picasso leave back door rain blows damages it;
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3. Replevin
a. Action return property. About possession of property
4. Trover or Conversion:
a. wrongful exercise of control of personal property.
b. E.g. P loses property D finds it and refuses to give it back on
demand.
c. JURISDICTIONS SPLIT:: Most jurisdiction adopt the rule that
intangible property may be converted only if you can evidence
it with something that is tangible. Eg. bank account &
statement.
d. Other jurisdictions, like CA do not require a strict
interpretation and say you do not need merger into a document.
Kremer case.
5. Trespass to chattel:
a. interference with use of property that does not involve
wrongful exercise which results in injury to the chattel.
b. E.g. AOL & EBAY did not control servers but did enough to
interfere with true owners use of servers.
iv. #4 Transfer of Personal Property:Rights In the Human Persona
1. 4 Elements of Right of Publicity
a. D used P’ identity
b. Appropriation of name or likeness to D’s advantage
i. White court says celebrity has interest to protect it from
unauthorized comm.. exploitations
c. Lack of consent
d. Injury
2. Property Rights in Human Cells
a. No. Policy arguments, statutes eliminates many rights
associated with private property ownership.
III.
PRINCIPLES OF REAL PROPERTY OWNERSHIP: Creation of Property
Interests by Gifts, Purchase & Adverse Possession
a. Create Property Interest Through Gifts
i. Intervivos Gifts 3 Elements (DDA)
1. Donative intent;
a. part of title bestow on done complete & irrevocable title
2. Delivery of gift:
a. subject matter; part with all future and present dominion; often
objective evidence of donative intent
3. Acceptance of gift by done:
a. done bears burden that gift of occurred
b. Many states you prove existence of gift by clear & convincing
evidence
ii. Gift Causal Mortis 2 Elements (made in contemplation of death)
1. Making gift in anticipation of imminent death.
2. Difference between incurable cancer vs. fear of death from flying
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iii. 2 Difference between Intervivos Gifts & Causal Mortis
1. Gift causal Mortis is revocable by donor until time of death
2. If person does not die because of anticipation death it is revoked
iv. Definitions: Devise: Gifts will real property OR Bequest: Gift of will personal
property OR Intestate: no will
b. Create Property Interests Through Purchase/Contract
i. Legal title: bare title held by owner/seller until closing
ii. Equitable title: beneficial ownership held by buyer until closing
iii. After settlement the title merges to buyer to have both.
iv. Case: Calvin: gets back money paid for taxes; he had legal title.
c. Create Property Interest Through Adverse Possession
i. Possession for a statutory prescribed pd. of time can ripen into title
ii. 2 Flavors of Adverse Possession
1. Without color of title
a. Satisfies 5 Elements of Adverse Possession.
2. With color of title
a. A deed or other instrument of conveyance that purports to
convey title to the land in question.
b. 2 Effects
i. Some states the limitations period of adverse possession
based on color of title is shorter than adverse possession
w/out color title
ii. Permits an adverse possessor to constructively possess
an entire parcel in land even though he actually possess
less.
 Idea is law will recognize B’s claim because true
owner failed to discover his interest.
iii. 5 Elements of Adverse Possession (AEHOC)
1. Actual possession of property
a. Do not have to be physically present all the time. Actual
presence on land
2. Exclusive possession
a. Only adverse possession should have exclusive dominion and
control.
3. Hostile
a. Without true owners permission.
b. “legally adverse to true owner of property”
c. Totman case – not present in family situations or situations
were it appears owner consents to property.
4. Open & Notorious
a. Visible and not secretive/surreptitious
b. Puts true owner on notice
c. Davis v. Park grazing animals not enough but fence is open &
notorious enough
5. Continuous for limitations period
a. no interruptions in the adverse posessor’s possession of RE
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b. Tacking – an adverse possessor may tack on to his time with
the land time from his predecessors as long as there is privity.
iv. Arguments to be made on adverse possession
1. The rightful owner is “sleeping on his rights”
2. Distinguish between trespass action but not having exclusive
possession
d. 2 Mechanism available for adverse possession parties
i. True owner bring action to eject them.
ii. Adverse possessor bring suit to quiet title in his name.
e. Concurrent Multiple Ownership/Forms of Deeds
i. Fee Simple Absolute FSA
1. “To A and his heirs”
2. A has full and complete title; A’s heirs gets nothing.
ii. Tenancy in Common:
1. “To X and Y and their heirs.”
2. 6 Rights Tenancy in Common (UEUWSH)
a. Each owns undivided interest in fee
b. Each can enter onto and avoid exclusion from land.
c. Each can use the land (but must account to others)
d. Each cannot commit waste (diminution value of land or fail to
realize full value)
e. Each can sell-buyer gets what seller had ½ interest undivided
interest T/C
f. When one dies, heirs get decedent’s interest as T/C
3. Interest can be inherited or devised by will
4. When multiple ownership, law presumes tenancy in common
5. 2 Mechanism to resolve tenancy in common disputes
a. Partition property; separate it
b. Sale
6. Chinn case: no waste b/c niece fixing house, increase value; and
nothing to account.
iii. Joint Tenancy w RT of Survivorship
1. “To X and Y as joint tenants with joint survivorship”
2. 6 Rights Joint Tenancy (UEUWDS) First 4 same different in ability to
sell and devise
a. Each owns undivided interest in fee
b. Each can enter onto and avoid exclusion from land.
c. Each can use the land (but must account to others)
d. Each cannot commit waste (diminution value of land or fail to
realize full value)
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e. *Sale: If joint tenant sells his interest, joint tenancy is
destroyed and becomes tenancy in common so the purchaser
has undivided interest as tenant in common.
f. *When one dies, heirs get nothing, all goes to surviving tenant
3. Key features of joint tenancy: 4 Unities (TTIP)
a. Time: joint tenants obtained interest at same time
b. Title: through same title doc
c. Interest: each joint tenant equal interest; cannot have 1/3 and
other 2/3
d. Possession: each joint tenant has same right of possession
*Break one and the joint tenancy is destroyed becomes
Tenancy in Common
4. Estate of Mitchell case, h/w joint tenants, but husband severed interest
by writing deed, broke unity of time destroying joint tenancy and
converting it to tenancy in common so interest passed to his son/heirs.
iv. Tenancy by the Entirety
1. “To X and Y as Tenants by the Entirety” (like joint tenancy w right of
survivorship)
2. Each owns undivided interest in fee
3. Each can enter onto and avoid exclusion from land.
4. Each can use the land (but must account to others)
5. Each cannot commit waste (diminution value of land or fail to realize
full value)
6. *Only between husband and wife
7. *Only severed by divorce which converts it to tenancy in common
8. *Sale: each tenant can sell interest but buyer gets ½ undivided interest
in a tenancy by entirety so if tenant that bought from dies first; buyer
interest is loss because it automatically goes to surviving spouse. You
don’t see too much because right of survivorship. Buyer takes risk that
seller will survivor. Decedent’s heirs gets nothing
9. *Death: So when one dies because right of survivorship if one tenant
dies, the other tenant gets all interest; decedent’s heirs gets nothing.
f. 3 Types of Deeds
i. General warranty deed: grantee promise to protect against any and all defects
ii. Special-Limited: grantor protects only claims caused by him;
iii. Quit-claim; grantor makes no warranty about title
g. Marital Property
i. Common law approach (41 states) property owed separately and converted
into marital property; put into bucket
1. 3 Doctrines of What constitutes marital property
a. All property owned by either spouse whenever and however
acquired
b. Property acquired during marriage
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c. Only property acquired from income earned during the
marriage (not by gift, devise, or descent)
2. Division under common law approach
a. Equitable distribution principle: courts will use equity or
fairness in distributing; discretion to adjust % of distribution.
ii. Community Property approach: starts with presumption that everything is
community property; so you have to take out to separate it.
1. 2 Doctrines
a. Any and all property held at time divorce, presumed to be
community property
b. If you have something separate and it gets commingled so you
cannot identify it, it is community property
c. Avoid the commingling doctrine if you can trace proceeds to
show the property was clearly separate and trace source.
2. Division under community property approach?
a. 50/50.
iii. Professional Degrees
1. NY rule: professional degree and earning capacity in bucket; courts
will consider earning power of degree
2. NJ rule: professional degree is not; but wife has claim for
reimbursement.
h. Trusts
i. Form of divided ownership “to trustee in trust for the use and benefit of
(beneficiary”)
ii. 3 people to start
1. Trustor/settler: person who created the trust
2. Trustee: (holds legal title) to material in trust
3. Beneficiary: gets benefit (holds equitable title)
iii. 6 Fiduciary Duties Owed by Trustee
1. Duty of loyalty
2. Duty to avoid self dealing
3. Duty of reasonable, prudent investment
4. Duty to protect and preserve res (deal w/normal detoriation)
5. Duty to avoid commingling trust properties
6. Duty to account to the beneficiary
iv. Estate of Rothko: shady executors.
i. Posessory Estates and Future Interests
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IV.
Landlord & Tenant Law
a. 6 Types of Tenancies
i. Estate of Years (Fixed Term tenancy)
1. Tenancy of definite length;
2. There is an end date
3. Usually lease; notice is not necessary
ii. Periodic Tenancy (Renewable Estate) (Bullok case)
1. Tenancy which extends itself for successive periods
2. Until notice of termination is given (common law notice 1 year is 6 mo
3. There is no end date
iii. Tenancy at will
1. Terminable at pleasure “at will” of either party
2. No notice required; just get out
3. No end date
iv. Tenancy at sufferance
1. Continued unlawful possession after a rightfully obtained possessory
estate termination
2. Different from tenancy at will be it is unlawful right.
v. Statutory Tenancy
1. Tenancy created by statutory provisions
vi. Trespass
vii. Bullok – daughter died; had period tenancy court found it was not transferred
to her and that she was trespasser. Court found lease terminated upon notice of
tenant’s death. Death terminates tenancy at will and sufferance; death does
not term estate of years.
b. 2 Transfers by the tenant
i. Assignment: transfers the lesee’s entire interest in the property
ii. Sublease: transfers only a porition of that interest
iii. Split in rule regarding transfer
1. Majority rule: if the only thing the tenant retains is the right of reentry, it is still an assignment.
2. Minority rule: retaining the right of re-entry is a sublease.
iv. Split in Lessor’s Interest in Preventing Transfer: Consent Clauses
1. Majority rule: landlord is able to arbitrarily refuse to consent
a. Some reasons, protect property, conveyance idea.
2. Minority rule: landlord cannot withhold consent unless it is
“commercially reasonable.”
a. Factors to look at: financial responsibility, alteration property,
illegal activity, nature of occupancy.
c. Transfers by landlord
i. Priority Interest: First in time, first in right
1. Senior interest – closer to the front of list
2. Junior interest – closer to end of list
ii. Subordination:
1. The act/process by which a person with a more senior interest gives up
sonority thus reordering the priority of the claims.
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2. Subordination agreement: agreement by which the holder of a
normally senior interest agrees to subordinate that otherwise would be
junior.
iii. Attornment:
1. Act of a person who holds a leasehold interest in land by which he
agrees to pay rent to a new landlord.
iv. Non-Disturbance
1. Landlord agrees to recognize tenant’s right to remain in leasehold
undisturbed as long as tenant continues to comply with terms of lease
v. SNDA clause: a clause in lease that contains provisions for subordination,
nondisturbance and attornment.
1. General rule: foreclosure of a trust deed, terminates subordinate
interest including lease.
2. Miscione case: parties can contractually agree to alter priorities to
avoid general rule and if landlord signs agreement with SNDA clause,
all parties protected b/c Attornment clause will survive the foreclosure.
d. Landlord’s Duty to Deliver Possession
i. Majority Rule: English Rule (Set forth in Restatement)
1. When lease is silent, landlord must deliver actual possession of
premises at beginning of term.
ii. Minority Rule: American Rule (Keydata case)
1. Landlord merely promises that possession will not be withheld by
himself.
e. Tenant’s Duty to Take and Continue Possession
i. Continuous operation clause:
1. Clause requiring the tenant to operate continuously throughout the
lease term.
ii. Use of premises clause:
1. Describes the use to which the tenant can use the property
2. It operates as a restriction; not as a requirement of continued operation
iii. Desertion or abandonment clause
1. Require the tenant only to occupy the premises, but not to engage in
continuous operations.
iv. Walmart: finding major anchor tenant breach in lease.
v. Tenant’s duty depends on language of lease; how clauses read; clarity is
important.
f. Landlord duty to make premises okay
i. Common Law Rule: Rule of caveat emptor – let the buyer beware.
1. There is no implied promise on behalf of landlord that the leased
premises are fit for purposes that for which the tenant wants to put the
land to.
a. Anderson; tenant obligated even though land too soft for
theater.
2. Tenant should investigate themselves; leases considered independent
and landlord’s breach of maintenance promises do not affect tenant’s
obligation to pay rent.
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3. Only Common Law Remedy Tenant: Constructive Eviction
a. Cause of action under common law for tenant to get out of
paying rent. 2 elements not easy to meet standard
i. Lease substantially impaired
ii. By wrongful act of landlord
ii. Modern Law Rule: Mutually Dependent Covenants
1. Reflected in Restatement (2nd) of Property
a. If tenant is deprived of something that was a significant
inducement in making the lease; and landlord fails to fix the
problem within reasonable time, tenant can term release.
2. 4 Elements Dependent Covenants
a. Landlord fails to perform w/in reasonable time
b. After having notice of problem from tenant
c. A promise that was a substantial benefit understood at the time
the lease was entered to be significant to the purpose thereof.
d. That was a significant inducement to tenant’s entering the
lease;
e. Wasson: dry space necessary high printing; significant
inducement to enter that premises would be dry tenant entitle to
term lease and move out w/o continued obligation to pay rent
under lease.
iii. Tenant’s Duty to Restore Premises in Good Condition at End of Lease
1. Restoration Pursuant to Lease
i. Common law rule for tenant’s duty to restore
ii. If lease is silent, tenant has no obligation to restore it.
iii. If lease is not silent look at terms to dictate whether
tenant duty
1. “duty to maintain premises” no duty to /restore
2. “return premises in as good condition” duty to
restore
2. Even without Lease
a. Tenant has duty to avoid waste despite what is in lease
b. Definition: Conduct beyond ordinarily use that is injurious to
landlord’s interest once lease over, there is waste.
i. 2 Types of Waste
1. Permissive/Involuntary: failure to maintain
premises, allow damage.
2. Voluntary Waste: intentional acts damaging
property
c. Rumiche: must affect “a vital and substantial portion of
premises so as to change its characteristics appearance,
fundamental purpose of building or uses contemplated. In this
case, replacing damaged ceiling & light fixtures was not large
enough.
3. Fixtures
a. General rule: something that gets affixed to land or realty
property of landlord; tenant cannot remove fixture.
b. If it is not affixed it is personal and cannot be removed.
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c. Trade fixtures – things that may or maybe not be affixed but
party of business/trade done by tenant.
i. Pfeifle: Look at intent parties. Did they intend for
personal property or fixture to remain with landlord. If
personal property tenant can remove provided no
damage to lease premises. So whether affixed is not
conclusive; need to consider intent.
1. Other factors to consider whether trade fixture
a. Was it bought separate from property
b. Means of attachment
c. Adapation to purpose of premises
iv. Premises Liability: Torts, Losses & Injuries
1. Common law rule: landlord is not liable for personal injury or death
caused by premises defects UNLESS he undertook duty of care and
negligently performed it.
a. Cases opposite result. Doe case, court found commercial office
building liable for sexual assault because it provided security.
2. Some states have statutes that impose tort liability on landlords.
3. Bonafacio: landlord’s duty is non-delegable.
v. 5 Rent Clauses & Other Payment Obligations
1. Fixed or Gross Rent Provisions
a. Tenant pays flat fixed amount rent + utilities
i. Advantage simplicity & convenience
b. Landlord pays TIM (taxes, insurance & maintenance)
i. Advantage gets net of rent-TIM, control TIM, get more
net
2. Triple Net Lease
a. Tenant pays TIM + smaller monthly rent
i. Advantage: control TIM so save $$
b. Landlord pays no costs, maybe some repairs
i. Advantage: avoid TIM & risk re: TIM;
c. Good to use when absent landlord; commercial lease type
3. Percentage Lease
a. Tenant pays % of gross income
i. Advantage: pay less if business doesn’t do well; but
more if successful
b. Landlord: TIM; makes money if tenant does
i. Advantage: potential to make lots $$ if business well
c. Found in shopping center leases; mutual interest max sales.
4. Combination of Clauses
a. K-mart case: gross, escalator, percentage provision.
5. Escalator Clause
a. Built in increases in RENT/rent.
b. Good to use business.
6. Mclaren: defendant won because expert provided better estimate of
fair market value.
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vi. Renewal, Termination & Holdover
1. Termination or Renewal requires compliance with lease. Pay attention
to terms of lease
a. Some States require exact compliance
b. Federal law requires substantial compliance.
2. 3 Ways Term lease outside normal expiration & term by terms
a. Surrender
i. Early term of lease by agreement by tenant and landlord
to end lease
ii. Can occur by Express agreement or implied (landlord
conduct implies ll accepting early)
b. Abandonment
i. Unilateral leaving by tenant.
ii. Tenant wants to end but landlord does not want to.
iii. Landlord has 2 options
i. Treat lease as term get new tenant.
ii. LL can say lease is still in effect and seek damages
for abandonment of premises
c. Destruction
i. Common law rule: destruction does not term lease.
ii. Modified Rule State statues: Uniform Residential &
Landlord & Tenant Act permits tenant to term if the
premises are destroyed such that leasehold is
substantially impaired; the tenant is excused so treat
lease as terminated and not pay rent anymore
3. Holdover
a. Lease is over but tenant stays on.
b. Common law rule Hershfield: tenant who holds over allows
landlord to make election: 1) trespasser; 2) landlord can say
tenant has renewed for similar term.
c. In Hershfield court found was not renewal even tenant held
over because he was moving out. No implied agreement that
he wanted to renew.. Need voluntary act that tenant wanted to
renw.
i. Language of lease is important; double rent provision;
forfeiture security to discourage hold over. Such
provisions can give up landlord’s right option to say it
was renewed.
vii. Implied Covenants in Leases
1. 2 Implied Covenants in leases in which even if not expressed in leases,
court recognizes to protect tenants
2. Implied Covenant of Quiet Enjoyment
a. WHAT IT IS: Promise on part of landlord that neither landlord,
nor anyone working, will wrongfully interfere with use and
enjoyment of leased property.
i. Idea tenant should enjoy quietly (not sound but
undisturbed perspective) so if it is disturbed, this claim
can arise.
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b. WHEN ARISE: Tenant has left b/c landlord or someone
landlord controls, disturbs the tenant’s quiet enjoyment this
claim arises.
i. ISSUE: Whether T is obligated to continue to pay rent
or breach of implied covenant of quiet enjoyment
created a situation where the T is constructively evicted
and therefore does not have to comply with terms of
lease.
c. Can be commercial or residential
d. Focus on conduct of landlord
e. 5 Elements breach implied covenant claim (also elements
constructive eviction)
i. Wrongful conduct by or attributable to landlord
1. Trace the conduct disturbing tenant’s enjoyment
back to something landlord did. “conduct by or
attributable to landlord”
a. E.g. night club owner who landlord apt.
too much noise; this is under his control.
E.g. minature golf case, youth not there
by control;
ii. Substantial deprivation of enjoyment of premises
a. Minor things will not give rise of breach.
Must be fundamental interference
legitimate enjoyment of use premises;
leaky faucet, no heat.
iii. Notice to landlord of alleged breach
iv. Reasonable time for landlord to cure (depend circums)
v. Abandonment b tenant within reasonable time after L’s
wrongful conduct
a. Pfeifle case not unreasonable dentist
wait for office to be built.
b. Depends on type of circumstances tenant
is applying; are they serial, does it have
to accumulate
3. Implied Warranty of Habitability
a. WHAT IT IS: A promise or warranty by landlord; that
premises are habitable. So claims tend to arise in residential
setting.
b. WHEN ARISE: when tenant does not pay rent.
c. Broader than other covenant so detoriation, disrepair of
building might violate.
d. Focuses on condition of premises are they habitable
e. 2 approaches of habitability:
i. Liberal approach Javins compliance with housing code;
ii. Minimalist approach Dick: violation of code is helpful
guidance to habitability. Real test: do conditions
deprive tenant of something essential; life, safety health
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f. How much can tenant withhold for landlord’s breach of
implied warranty of habitability
i. Javins: remanded to see how much right of possession
had been impaired by inhabitable conditions; There is
abuse by tenants; but courts are willing to have so
tenant has certain rights that can count on.
viii. 6 Landlord Remedies for Tenant Breaches
1. Security deposits
a. May be entitled however landlord must understand
requirements to account for deposit.
b. Garcia case shows failure to comply can result in forfeiture
AND forfeiture claim for damages beyond damages and
payment of attorneys fees
2. Self Help: Eviction thru sum proceedings: Forceable Entry & Detainer
a. Process by which Landlord can sue to regain possession;
decision determined quickly short windows service and limits
issue to whether or not landlord should regain possession
i. Tenants can raise this by raising implied warrant of
habitability. Courts will hear it at times and the
summary proceedings will be prolonged.
3. Damages for injury to property, Unpaid rent, consequential damages
4. Split Duty to mitigate
a. Common law rule: landlord has no duty to mitigate.
b. 42 states say duty to mitigate b/c contractual nature.
i. Austin Hill; court said b/c lease is contracts applied the
rule of mitigation and found landlord had duty to
release premises to other tenant to mitigate loss.
5. Potential Equitable Relief
i. Cushman court found equitable relief pursuant to
continuous operation clause was appropriate for bakery.
6. Landlords must remember
a. No Retaliatory Eviction: Eviction cannot be in retaliation or
attempt to penalize tenant for exercising right of reporting
violations under law. LL must be careful how articulate it.
ix. 3 Tenant’s Remedies when landlord breaches
1. Argue breaching under implied warranty of habitability and modern
law rule of mutually dependent covenants.
a. Vacate premises and term lease after notice and failure to make
repairs
b. Withhold rent until defects cured
i. Most states may require deposit in escrow account
c. Use rent for repairs
i. Make repairs and deduct reasonable costs; must give
notice.
x. Anti discrimination regulation
1. Fair Housing Act of 1968
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a. No discrimination based on color, religion, sex, familial status
or national origin.
b. P has to show prima facie case of discrimination
c. D shifts to burden and show non-discriminatory reason why
did
d. If he can, the burden back to P to show it was pre-texual in
nature
2. American with Disabilities Act
a. Statutory imposition on landlord – landlord make reasonable
accommodation for people with disabilities.
V.
2 Common Law Ways to Regulate Land Use which are inadequate
a. Trespass
i. Physical entry on land
ii. E.g. shooting bullets over land; smoking light not trespass m/b nuisance
b. Nuisance
i. The unreasonable, unusual or unnatural use of one’s property so that it
substantially impairs the right for another to peaceably enjoy his or her
property.
ii. 2 Flavors of Nuisance
1. Private nuisance: interferes with private property.
2. Public nuisance: interferes with general public health and safety.
iii. Private Nuisance
1. Common Law Rule
a. Focuses on the unreasonable conduct of D
2. Modern Rule adopted Restatement 822
a. Focuses on the unreasonable interference
b. 3 Elements
i. Invasion of P’s use or enjoyment
ii. D’s conduct is proximate cause of invasion
iii. Invasion intentional and unreasonable or negligent
reckless
c. Balance factors to determine if interference is unreasonable
i. The interfering and invaded uses
ii. Location of land
iii. Suitability of each use
iv. Any precaution
v. Any other relevant factor
d. A reasonable and legal use of property can still cause an
unreasonable interference with a neighbor’s use and therefore
constitute nuisance
VI.
Limits on Governmental Power over Property: Taking
a. Due Process & Equal Protection Clauses
i. 5th Amendment: no person should be deprived of life, liberty or property w/o
due process of law
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ii. 14th Amendment: no state shall deprive any person of life, liberty or property,
w/o due process of law, nor deny any person equal protection of laws.
iii. So one should always consider a due process and equal protection clause
challenge when they believe the government is violating their rights.
1. To prevail, the statutory classification must fail the rational basis test.
2. In other words, if there is any conceivable set of facts which is rational
basis for classification, it will be upheld.
a. Explanation does not have to be something legislative thought
of; court just come up reasonable basis for different treatment
of classes people within statue; it is sufficient to satisfy rational
basis test.
b. 3 Elements Taking
i. Taking
ii. Public use
iii. Just compensation
c. 2 ways taking
i. Regulatory Taking: By effect
1. government action has effect taking the property even if not intended.
Regulatory taking. Taking by regulation that govt issued
ii. Intends to take property by Eminent domain/condemnation.
1. E.g. wants to build road. (Kelo)
d. Regulatory Taking
i. Argue property is being taken w/o just compensation in violation of 5th
Amendment. (4 ways)
1. Permanent physical occupation of property is a taking that requires
compensation.
a. E.g. mailbox.
2. Physical presence – giving up right to exclude others even if they
cannot stay forever
a. E.g. easement
3. Invasion by third parties: govt authorize a 3rd party to permanently
occupy private property
a. E.g. cable co. allowed to install cables.
4. Taking in context of confidential info for govts own use.
a. E.g. giving up right to exclude; disclosing someones trade
secret.
ii. Nolan & Dolan – SC articulated a 2 part test that is to be applied in a
regulatory taking context.
1. Essential Nexus between state interest and condition the state is
imposing.
a. Nolan called it a “fit”. So no fit = unconstitutional = taking.
i. E.g. Nolan condition imposed was easement; state’s
interest visual barrier house create; court found taking
b/c no fit; the state’s interest the visual barrier is not
being addressed by condition imposed the easement.
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2. Rough Proportionality deals with relationship between exaction
and impact of project.
a. In other words, does the requirement on permitee bear a rough
proportionality to impact that the applicant’s project is actually
going to have on the public
i. E.g. In Dolan the exaction requirement was the 10% to
greenway and bike path and impact was to create less
flooding but If Dolan put more pavement and created
an additional 100k gallon of storm water, the question
is whether 10% requirement imposed is necessary or
roughly equal to the amount of land needed to deal with
100. Water. If it was imposed to handle million gallons
of storm water, there is not rough, b/c impact is 100k
gallon, but exaction needed to handle millions. Look
like gvt trying to take and use for other purpose.
iii. Penn Central View Regulatory Taking
1. Only applies when a law regulates and the law is the taking of
property not asking for something in return like in Dolan. Issue:
application of NY’s historic landmark legislation to Penn Central
Station. No exaction being demanded but the impact of existing
regulation upon the property.
2. 4 Factors Go to Analysis of Whether Taking Occurred
a. Is there a valid public purpose behind regulation gvt imposed
i. Zoning/public health and safety regulations
b. What is nature of regulation
i. Physical invasion? Onerous leans towards taking.
c. What are the investment back expectation of party being
regulated
i. Do they expect to make reasonable return
d. Diminution of value of property held by property owner?
i. 3 and 4 inter-related
iv. Lucas Case – eg. Regulation goes so far destroy value of interest
1. Taking I a total deprivation of beneficial use (economic benefit) unless
interest was not his right to sue in the first place.
a. Lucas owned 2 lots beach front; after bought them and
intended to build state passed an act prohibited any
construction; worthless. Court found: total depriviation of
beneficial use; so almost like physical appropriation like
Loretto. But under Penn Central factor 3 destroyed by virtue of
regulation.
v. What are remedies available to property owner
1. Inverse condemnation First English case: prevention of use of
property, even temporary, can give rise to claim that taking has
occurred so gvt must pay just compensation. County regulation
prevented operating camp for 6 years, the period of time was a taking
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that entitled church to compensation. So even a temporary taking can
give rise to claim that just compensation needs to be paid.
2. Measured damages property owner by what owner lost not what govt
paid.
a. Brown; property owner lost nothing,. There is taking, no
damages b/c clients lost nothing.
vi. Eminent Side Taking
1. Language of taking clause requiring that taking be for public use – can
be satisfied by the finding that there is public purpose behind the
condemnation. In Kelo it was (economic development)
a. So court said it would defer to legislature’s finding relating to
economic development potential of project that was under
construction
b. Strong dissent by justice occonor, argued that by allowing
legislature to declare public purpose, court may in fact be
abdicating its responsibility to review such laws and such
attempts to exercise eminent domain authority.
I.
Introduction to Zoning
a. Traditional Zoning:
i. Type of land use regulation that identifies particular types of land that will
occur in district or zones.
1. Village Euclid Court said constitutional, bc exercise police power
to protect health and safety of citizens; split up to make safe.
b. SZEA
i. Written by fed govt; empowers cities to adopt zoning law.
ii. Number, shape and area of these districts that are best deemed suited to
carry out purpose of act
iii. Section 3 – comprehensive plan (municipality has authority to do this)
governs the uses
1. Municipality has ability to say certain areas within municipality
will be dedicated to specific areas of land use.
2. Idea create areas of particular type of land use, thru comprehensive
plan, and care up land to district to have specific land use
designations.
c. Zoning activities inconsistent with comprehensive plan
i. Spot Zoning: Taking one area within zone and make it be some different
land use. Benefit owner This is bad;
1. Generally is bad; introducing a theoretical inconsistent land use
into area.
2. Tools to avoid spot zoning is comprehensive plan – b/c it
designates areas and points out which is spot zoning and is not
allowed.
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b. Sometimes zoning not appropriate representation what going on.
i. Bell case. Not Spot Zoning when circumstances of neighborhood has
changed; just recognized affect of new circumstances.
c. Zoning ordinance can function as its own comprehensive claim.
d. How does zoning process work 4-7
1. Section 4&5: how municipality creates rule;provides how rules can
be change
2. Section 6 zoning commission set up that recommends boundaries,
comprehensive plan and district within comprehensive plan
3. Section 7 board of adjustment, parties can appeal and adjustment
can make to zoning to take into account circumstances of certain
property.
e. Zoning is Political Process
1. Sometimes reflects polical realties vs. health and safety.
2. Primary way gvt control land use; how particular pieces of
property can be used by the owner.
3. Euclid tells us this is a constitutional gvt. Power and control over
land use.
II.
2 of the Major Flexible tools available for zoning
a. Special use permit/conditional use permit
i. Conditional use/special use: additional kind of land use identified ok
within district, provided that board first reviews and approves the uses
1. Conditional uses are allowed within the zoning ordinance/ Section
7 gives the zoning authority power to hear special exceptions under
terms of ordinance.
b. Variances
i. The Permanent treatment of land in a manner different from what zoning
requires because of land’s characteristics.
1. What drives variances, are the characteristics of land, shape or
some other feature, or location of land; which makes it appropriate
to vary the requirements of zoning ordinance
2. 4 Elements Variance (Rancord case)
a. Variance is not contrary to public interest
b. Special conditions exist so that literal enforcement of
ordinance would cause unnecessary hardship
c. Spirit of ordinance would be observed
d. Substantial justice would be done by granting variance
3. 2 views for unnecessary hardship
a. Old view – high standard that says hardship was unduly
restricted use of land, so owner could not make any
reasonable use of land at all.
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b. New view; adopted by Rancord – rejected old view and
adopted a modified view unnecessary hardship shown 3
things
i. 3 part test unnecessary hardship
1. Zoning restriction interferes with a
reasonable use of property considering its
unique setting
2. No fair and substantial relationship exist
between general use of ordinance and
specific restriction of property
3. Variance would not injure the private rights
of others.
Rancord case: people owned property wanted to put barn for horses. is it reasonable use of
property considering unique setting; rural area but property shaped in away barn horses would
be in rear not observable in street, impact would neighbor minimize. All of this indicated that
having horses could be reasonable use, there was not an unreasonable use of property. Because
of this, that limits the impact of others, so other elements satisfied.
2. Variance looks at property, surroundings to determine whether unnecessary hardship is
created, so modifications can be made so owner can make reasonable use of property.
a. Key about unnecessary hardship is that it is balancing hardship of owner and
public interest.
b. If the courts fail to do the balancing, court will tend to overturn it as Southpadre
case, the insistence that stay firm to requirements and not consider the possibility
variance appropriate, failed b/c no balance.
3. 2 flavors of variance Use variance v. Area variance
a. Use Variance:
i. different type of use on property. So zoning has one classification and
proposed use is different
ii. Stringent standard to be satisfied. In effect it is going against
comprehensive planning and idea of zoning.
b. Area Variance:
i. use is ok under ordiance but property owner seeks to alter a physical
characteristic required by zoning plan.
ii. lower standard to meet showing. I am doing same kind of thing allowed
by ordiance, but I need some relief in order to use property to build
something.
1. Southpadre Island case; setback requirements and piece of property
shape is such that it is impossible to comply with those
requirements and still build something. Triangular piece of
property, set back requirements say you have to be certain feet,
that may make not enough room to build building
iii. “practicable hardship” vs. unnecessary hardship.
3 Other Tools for flexibility
1. Floating Zone
a. way of telling people the specifications or standards for a particular area in
advance of any development. E.g. undeveloped area, it will be industrial in
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future; there are stds that will generally apply. Or u will say mobile home
districts in future, this is what u need to have to be successful
b. Identifying a head of time the standards and requirements, people can understand
and develop accordingly.
c. Area or idea, but not fixed;
2. Cluster zones
a. Place allow building to be clustered closely together, changing density
requirements to allow open space or other use of property
b. Relate to issue of density, allow different density to accommodate open use or
some other use considered desirable
3. Planned Unit Developments
a. Idea Whole development in particular area that might have several different uses
involved;
i. E.g. residential community with commercial components; people walk to
stores.
ii. Planning entire development as 1 unit; which may allow u to alter density
requirement or alter with commercial b/c the whole unit satisfies the
requirements of the zoning ordinance.
III.
Non-conforming use
a. Pre-existing uses that does not comply with zoning after a change with
classification.
b. Way to deal with a particular use of land, when zoning classifications of land
changes; so that the use is no longer in conformance of statue.
i. e.g. property with store on it; commercial and retail use; classification
changed zoned residential; so use was ok before in its pre-existing state
but now it is non-conforming
c. Rights of non-conforming owner
i. Vested rights – rights in a pre-existing use that if interfered with might be
a taking or denial of due process..
ii. What are some of the vested rights?
1. Opportunity to continue to conduct the pre-existing use for at least
some period of time. Municipality has to tolerate this nonconforming use for period of time known as the “amortization
period.”
a. Amoritization period – period of time non-conforming use
is tolerated before have to find new place to go.
i. Village of Vitale: called it grace period; to
grudgingly tolerate but at some point this right
terminates
ii. How long amortization period is going to continue?
1. In some cases court said it was perfectly
reasonable way to amortize to last until
ownership changed.
2. It maybe allow to exist forever. But they
can set a reasonable time period.
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d. Can arise out of language of ordinance
e. Majority rule: mere planning of use, is insufficient. Need to start construction.
f. Cities can be forced recognized to non-conforming use and vested rights by
estoppels if detrimental reliance on representations made by town.
Subdivision/Planning
o A plan of plat to a subdivision is designed to provide details of where street would
go, etc. The job of a Planning Commission is to make sure plat provides property
arrangement to meet public needs.
o Planning is the administrative process of checking the plan against statutory
requirements to determine whether proposed subdivision meets the requirements
under the statute.
o The process involves negotiation process between developer and planning
commission and often the commission ask for exactions. An exaction demands
the developer to do certain things.
o However, the planning commission is ultimately subject to constitutional limits
requiring that the 1) the exercise of powers be clear; 2) and not demand so much
of developer that it constitutes a taking.