PROPERTY OUTLINE
1. INTRODUCTION
Theories:
1. Social Utility: Maximizes social utility to get investment and development of private property (e.g. community
property)
2. Labor Theory: A moral claim over that with which you mix your labor (e.g. Adverse possession)
3. Individual Rights/Fairness: Granting/limiting property rights for greater social utility
4. Relational: Property law about relationship not been individual and house, but between people in relation to the
property
Bundle/Set of Real Property Rights
Intellectual Property Rights
1. Right to exclude  Limitations
 Necessity
 Civil Rights Laws (Businesses)
 Consent (express or implied invitation)
2. Right to use/enjoy  Limitations
 Nuisance Laws – hoarders, unsightly conditions on
property,
 Zoning laws
3. Right to alienate (transfer, sell, lease) Limitations
 Landlord/tenant law
 Fair housing act
4. Right to maintain ownership  Limitations
 Eminent domain power and takings power
1. Receive royalties and license fees
2. Right to reproduce the works and to
make adaptations of the work.
Limitations
 Fair use/Right to make a parody
 Transformative use
2. TRESPASS LAW
Common law Trespass = unprivileged intentional
(=volitional)
intrusion upon property possessed by another.
 By individual or object
o Rolling a ball onto neighbors property
o Building a fence on somebody else’s property
 At, above, or below the surface
I. PUBLIC POLICY LIMITS ON THE RIGHT TO EXCLUDE
Limitations on Right to Exclude
 Necessity – Ploof v. Putnam
 Shack privilege
 Free speech – Marsh v. Alabama
 Consent
 Other public policy grounds
 Public Accommodations Law
o Common Law
o Statutory Law
 Federal civil rights laws –
race, religion, etc.
 State – various different prohibited classes
State v. Shack, NJ 1971
 Case about lawyer and doc. who want to give legal and medical advice to migrant farm workers. Owner said
he had to be present- they refused and wanted it to be confidential – he got them arrested for TRESSPASS.
 Holding: Fundamental rights of individuals outweigh interests in real property. Right to exclude is limited.
He might be able to take it to Federal Court and say that his property rights have been unfairly curtailed
 Limitation where health/safety of people on land are at stake NECESSITY argument.
 But there’s a necessity for a lawyer to meet with his clients privately FIRST AMENDMENT
 NO REASONABLE ALTERNATIVE METHOD of getting information to migrant workers on farm all day.
 Tenant’s RIGHTS TO RECEIVE VISITORS.
 There was a statute allowing them to go SUPREMACY CLAUSE/CONGRESS’ WILL
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II. TRESPASS REMEDIES
What sort of remedy for Trespass is available to a property owner?
 Injunctive relief – ejectment off property
o Declaratory judgment
o Ejectment Order
 Monetary relief – How are money damages to be measured?
o Nominal money damages
o Statutory damages
o Compensatory damages
o Punitive damages
Galvin v. Eckman, MA 2008
 ∆ cut down 10 old oaks on π property after he refused to give him permission to do so. Defendant wanted
RESTORATION DAMAGES/ Objective VALUE OF TREES/DIMUNITION IN MARKET VALUE.
 ∆ Arguments
o Standard Measures—Objective and Appropriate
 π Arguments
o Wants SUBJECTIVE EVALUATION before Trebling (x3) for PUNITIVE DAMAGES Wanted to make
pond, lost tranquility
o There may be no Diminution in Market Value; He wasn’t using trees for firewood why use value of
timber; Cannot restore mature oaks.
Jacque v. Steenberg Homes, Inc., WI 1997
 ∆ drove across π’s property to deliver mobile home even though π expressly told him not to. Jury awarded π
$1 in nominal damages and $100K in punitive damages.
 ∆’s best arguments from precedent and policy
o π suffered NO HARM to PROPERTY
o INEFFICIENCY  ∆ could have delivered NO ALTERNATE WAY
o NECESSITY
 π’s arguments
o Right to exclude is PROTECTED. Should NOT CARE about efficiencies of alternate
o NO NECESSITY could have waited till summer
o $30 fine for trespass would not DETER anybody PUNITIVE DAMAGES NECESSARY
 BMW v. Gore THREE FACTORS FOR PUNITIVE DAMAGES
o Degree of reprehensibility
o Disparity between π’s harm suffered and punitive damages award
o Difference between punitive damages award and civil/criminal penalties authorized in comparable
cases
III. PUBLIC ACCOMMODATIONS
Common law of public accommodations
 Grants members of the public right of reasonable right of access only to:
o Innkeepers and common carriers like planes, trains, buses – traditional Majority Rule
 Justification?
o Usually a monopoly
o Provision of necessities
o Open to the public (Less convincing because not really exclusive to innkeepers and common
carriers) (Justification for minority rule –all places that hold them out to the public have to grant
access to everybody equally)
 Traditional majority rule of the common law of public accommodations is modified in Uston v. Resorts
International Hotel
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Uston v. Resorts International Hotel, Inc., NJ 1982
 Casino refused to allow card counter π into casino. π wants to EXPAND ACCESS TO since it he says it is a
PUBLIC ACCOMODATION and he was being UNREASONABLY EXCLUDED
 Minority Rule by Court
o All property open to the public
o Must grant right of reasonable access to members of the public
o Such places have no right to exclude people unreasonably
 Counter arguments
o State v. Schmid: Court refused to protect unreasonable expulsions—no legitimate interest in
unreasonably excluding particular members of the public when they open their premises to public
use. Even though Princeton University was private property, it was unreasonable to prevent Labor
Party to enter.
o Madden v. Queens County Jockey Club: Mr. Madden was excluded from a race-track because the
track mistakenly thought he was someone else (a well-known bookmaker).
o BUT HERE No good public policy argument—π was trying to steal money not assert FIRST
AMENDMENT right to distribute information or neither was an UNREASONABLE exclusion due to
mistaken identity.
Brooks v. Chicago Downs Association, Inc. (7th Cir. 1986)
 We can rely on the market to prevent outrageous excesses in discrimination.
 It’s in the interest of businesses open to the public to make money so we should trust them to figure out to
whom they want to provide access to and whom they don’t.
IV. FEDERAL AND STATE CIVIL RIGHTS LAWS
Civil Rights Act of 1964, pp.33
 What are the elements to show that somebody has violated the civil rights act of 1964?
o ∆ has committed discrimination or segregation
o Whether they are in a protected class – race/color, religion, or national origin
 What is missing?
 Sex, Disability, Sexual Orientation
o Whether the place falls under the def. of public accommodation EXPRESS or IMPLIED
 What are the establishments?
 Hotels
 Serve food
 Places of amusements/entertainment
o Not a private establishment
o Have to have been denied access.
o If the place of public accommodation is IMPLIED –it has to “effect commerce or supported by state
action” – why is this requirement?
 Because the law was passed under the interstate commerce clause
42 U.S. Code § 1981 - Equal rights under the law
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S. Code § 1982 - Property rights of citizens
“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
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State Statutes
 More of them have sex, sexual orientation, gender identity etc.
Patricia Williams Incident
 Are retail establishments included under CR Act of 1964? Assuming retail establishments were found to be
included under CR Act of 1964.
 Williams’ arguments – language, inst. Roles, cannons of stat. interp., policies
o PRECEDENT that civil rights statutes are not exhaustive but are illustrative. The places of
entertainment/amusement are non-necessities – retail establishments should be included.
o Section 1981 – she was there to make a contract, Benetton held itself out open to contracting and
she was not allowed to.
o Section 1982 – she was there to purchase personal property and she was denied the right to
purchase personal property.
 Benetton’s arguments
o Store with buzzer system is PRIVATE ESTABLISHMENT.
 Williams’s counter: Every other Benetton is open to the public. This Benetton is not a
private club. A place of shopping is not a private club.
Noah v. AOL, pp. 43
 Noah, who is Muslim was discriminated against in an AOL chat room because of his religion.
 IS AOL (Facebook?) a place of public accommodation covered under CR act of ’64 or NJ Law?
o Under NJ Law: a chat room could constitute a meeting place/place of amusement.
o AOL argues that law says “real property” – a chat room is not real property.
Boyscouts v. Dale
 A gay scout leader was tossed out of the boyscouts of NJ. Argued that this was an EXCLUSION ON BASIS OF
SEXUAL ORIENTATION in a place of public accommodation that was open to the public generally.
 NJ agreed that the boy scouts were a place of public accommodation and he was wrongfully removed.
 Boy scouts sued and argued that the forced inclusion violated their FIRST AMENDMENT RIGHT TO
FREEDOM OF ASSOCIATION.
V.
FREE SPEECH PROTECTIONS AS LIMITATIONS ON THE RIGHT TO EXCLUDE
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
First amendment  Congress shall make no law … abridging the freedom of speech or of the press
Incorporation doctrine – protections of the first amendments are incorporated as related to not just the
federal government, but should be read as “neither congress, nor the states, not municipalities…”
Free Speech Constitutional Provisions
 Where are people found today if you want to get your message out? Internet; public sidewalks, malls,
markets, squares
 Free Speech Clauses guarantee ability to get your messages to “the people” (Marsh) and “the people” have
in interest in having access to that message.
 Complications “The people” moving from town squares to suburbs with PRIVATE “shopping malls”
and “gated communities.” 1st Amendment usually only applies to public entities.
o BIG QUESTION: When big private entities act like public entities or a public town square—how we
balance First Amendment Concerns with Private Property Interests.
Marsh v. Alabama, SCOTUS 1946
 Grace Marsh is Jehovah’s Witness and she was distributing religious materials without a permit and was
asked to leave. She was in Chickasaw, town owned by a private company (Gulf Shipping).
 Holding: She had right to distribute literature on private town property because town is HOLDING ITSELF
AS PUBLIC IN FUNCTION and is subject to governmental regulation.
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
The court is equally, if not predominantly concerned with the rights of the citizens of Chickasaw to RECEIVE
INFORMATION/BE INFORMED. “They have the right to be informed.”
If the residents of Chickasaw only lived in Chickasaw, but worked somewhere else – the court may be more
amenable to the right of Chickasaw to exclude. Here like State v. Shack—stuck in town.
Ave Maria, FL Conservative Catholic only private town, can Planned Parenthood go in to provide information?
 Arguments for PP: Not everybody has access to Internet/information; How will they know what to look for?
 RIGHT TO INFORMATION; Birth Control Constitutionally Protected Right. ACTING AS PUBLIC TOWN.
 Arguments for Ave Maria: FREEDOM TO ASSOCIATE; Private town; VOLUNTARY ISOLATION (Unlike
Shack and Marsh).
Lloyd Corporation Ltd. v. Tanner, SCOTUS, 1972
 Large mall bordered by public streets and sidewalks but no public streets inside or crisscrossing the stores.
Anti-Vietnam War protestors went to the mall to protest in a “mall” since town squares abandoned.
 Court differentiated from Logan Valley  where protestors were given the right of access and that was in a
very small shopping mall (2 shops) and there was no other place for the protestors to go to advocate their
message—not entirely true—but they were protesting one of the stores.
 Holding:
o Mall not dedicated to public use PRIVATELY OWNED – Tanner has no FIRST AMENDMENT RIGHTS
for people.
o Property under 5th and 14th Amendments cannot be deprived or taken for public use without
just compensation
o No connection of message to property (Unlike Logan) and not a company town (Marsh).
 Dissent—this is company town/town center more than Logan Valley—can get all amenities, people go from
private homes to private malls—this is where all “the people” are.
NJ Coalition Against War in the Middle East v. JMB Realty Corp, NJ S.Ct 1994
 Activists potential 1st Amendment Arguments?
o The place to find the people to NJ is shopping malls. Downtown business districts don’t exist.
Statistics in case.
o Court holds that speech must be: Heard, Effective, Able to reach People.
 Arguments based on THREE SCHMID FACTORS
o Normal use of property is shopping.
 Normal use of the mall is to invite people to hang out, not only shop
o Extent and nature of the public’s invitation to use the D’s private property
 Extent of the invitation is for shopping only
 Counter – invitation is not only for shopping, the extent and nature of the public’s
invitation to use the property is quite broad
o Purpose of plaintiff’s expressive activity in relation to both the private use and public use of
the property
 The expressive activity malls are for is to shop - very different from your anti-war protests
 What could NJ shopping malls do after this decision, that their right to exclude is very limited?
o SCOTUS 5th and 14th amendments – could argue taking of their private property for public
use without just compensation
 The holding is limited to leafleting and associated speech in support of, or in opposition to, causes,
candidates and parties- political and societal free speech AND malls can regulate time, place and manner but
not content.
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VI. ADVERSE POSSESSION
Elements
 Actual Possession  Substantial building or activity. Need visible exercise of dominion/control.
 Open and Notorious – Notice Giving  No Actual Notice required Only Constructive Notice
 Exclusive  Have to use like normal property owner would. Can allow other people if custom.
 Continuous  Subject to caveat that “continuous” as a normal property owner would use.
 Adverse/Hostile  Without Permission
 For the statutory period  range is 5 to 10 years
Policy Justifications for Adverse Possession Law:
1) This has existed as a doctrine forever  Owners are on notice about it.
2) Efficiency / Utility – who is using the land best transfer to highest valued user.
 Counter: Is leaving property untouched a less productive use?
3) Responsibility required for property owners – what’s the minimal requirement for checking
 Statutory period (once every period)
4) Punishment (landowners not making use of their rights)
Brown v. Gobble, W.Va 1996
 2 ft wide tract of land owned by Browns but enclosed by fence on Gobble’s side of property. Browns bought
from Fletchers in 1985, Fletchers bought in 1978. Browns never protested till 1994 when they wanted to
build road. Stat Period = 10 years. Fence had existed since 1937. Gobbles want to Adverse Possess.
 TACKING: Successors can add the original adverse possessor’s holding period (tacking) only if they are in
privity with one another, meaning that the original adverse possessor purported to transfer the title to the
property to the successor.
 Court says: don’t have to look at tacking because if the Gobble’s predecessors (Belvins) (satisfied the
statutory period alone (possessed adversely for 10+ years), they don’t need to tack but instead the prior
adverse possessors just need to “intend to convey” the property to the new possessors (Gobbles).
Nome 2000 v. Fagerstrom, Alaska 1990, pp. 289
 What is Nome suing for? To eject the Fagertroms from the property.
 As Nome’s attorney, which elements of Fagerstrom’s AP defense are most vulnerable to attack?
1. Actual possession – Activities? Which part of the lot?
 Pre-1978: shack, picnicking, planted trees, camper trailer on property Nome 2000 wants to
argue that this doesn’t satisfy the requirement for actual possession. Court says, look at ALL
POSSESSION. Post 1978 – Built house.
 The possessor must ACTUALLY POSSESS the property – use the land as an owner would use.
2. Open and Notorious – meaning? Character of land?
 NO ACTUAL NOTICE REQUIRED.
 CONSTRUCTIVE NOTICE – reasonably diligent owner would know that somebody was “waiving
a hostile flag”
3. Exclusive of whom? Expert testimony?
 Most property owners let other people use their property - that’s what an “average” property
owner would do in rural Alaska.
4. Continuous
 No continuity because only seasonal, but court says that’s continuous because AVERAGE
PROPERTY OWNER WOULD USE SEASONALLY.
5. Adverse/Hostile – AP’rs state of mind? Presumption?
 OBJECTIVE TEST – AP’r just lacked permission from record owner assumed that AP’r knew it
was somebody else’s land
 SUBJECTIVE TEST  Intentional Dispossession – AP’r intended to oust true owner (TX)
 SUBJECTIVE TEST – AP’r mistakenly/innocently occupies property of another (GA)
6. Statutory Period  10 years met
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POLICY ARGUMENTS for/against Intentional/Unintentional Trespassers becoming Adverse Possessors
 Intentional land grabs should not be rewarded.
 Subjective tests are hard to establish. Hard to get evidence of state of mind.
 Settled Expectation/Roots Doctrine: justified shifting ownership. Said we want to protect the “settled
expectations” of the adverse possessor who had roots attached to the land over the period
 People should know land is never FREE/UN-OWNED. Mistaken adverse possession only apply to boundary
disputes?
 Efficiency of avoiding litigation.
 Why not leave to free market/ negotiations:
o Investment made by AP’rs should be protected.
o Calculated risk taken.
o Highest value user should win
o Judicial administrability
o Rewarding those who have made a personal investment/for whom property has PERSONAL VALUE
vs. just economic value. Maybe the counter is that the allocation of burden is unfair.
VII. PRESCRIPTIVE EASEMENTS
Use Right = Easement is the limited right to use (or control use) the property of another [similar to licensing]
 Affirmative Easement: right to do something on another’s property (right of way)
o Ex: allowing people to affirmatively use trails, pick berries, fish, etc.
o Can be acquired by the doctrine of prescription (negative easements can’t)
 Negative Easement: right to prevent someone from doing something on their own property
Requirements to Acquire Doctrine of Affirmative Easements by Prescription
 Actual use (don’t have to have built anything, etc.) that is,
 Open and notorious
 In which the land owner acquiesced
 Does NOT need to be exclusive (can use with the owner)
 Continuous
 Adverse/hostile [presumption] If express permission is given, then not hostile or adverse
 For the statutory period
Community Feed Store v. NE Culvert, Vt. 1989
 CFS claiming Prescriptive Easement over gravel lot to continue using for trucks
 What are the best arguments for Community Feed Store? What element has Culvert not established?
o Adverse/Hostile
 CFS argues that this should be thought of as permissive use by public of private property and therefore
not adverse/hostile.
 Court says this is not a case about generalized public use – this is about a lot of use by trucks of Culvert
o The PRESUMPTION here is adverse/hostile
o If presumption was switched—then there would ne no PE awarded.
Some questions to Ask (Not exhaustive – move down elements)
 Was there express permission? (Problem with proof – people don’t give their neighbors written permission)
 AP or PE? Matters for Exclusivity requirement.
 Continuity Requirement met? What is considered continuous.
 Is tacking allowed?
 What is the state of mind requirement in the jurisdiction? Objective test vs. Subjective test.
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3. NUISANCE LAW
I. LAND USE CONFLICT AMONG NEIGHBORS
Substantially and unreasonably interferes with the property holder’s enjoyment of his or her property.
 Noise
 Smoke
 Light
 Smell
Why do we insist on substantial or unreasonable interference?
 We have to live together so not every minor interference can be an actionable cause.
 We have to balance the right of people to enjoy their property as they wish with the right of the opposing
party to enjoy their property free of nuisance.
Remedy:
 Injunctive relief is to shut down nuisance (Purchased or regular)
 Money damages: compensate for loss of enjoyment. (Cost of restoration; Diminution in Market Value)
Individual Rights Based Approach - The rights of individuals to enjoy their property without nuisance/creating
nuisance.
Utilitarian Approach (Coase)- Thinks we should determine who wins based on whose activity is more economically
viable. Think of harms as reciprocal harms.
 E.g. Fish farm vs. Factory  IF we don’t grant injunction against factory we value the factory over the fish,
and if we do we value the fish over the factory. What if the factory makes an invaluable vaccine/medicine?
What if the fish aren’t very valuable/profitable?
 Criticisms of the Coasian Approach:
o Doesn’t take into account who was there first and considerations we think are valuable
o Utilitarian law and econ approach has been very influential in nuisance law (Restatements)
Pendoley v. Ferreira, Mass 1963 (Piggery)
 Asking for injunctive relief against the piggery
 Valuation: $200K homes that are interfered with 25% of the time. The piggery is valued at $600+ 60,000 +
50,000 + 50,000 = $166K… estimated loss of $75K
 HOMEOWNERS ASSUMING THE RISK?
 What is the standard that we are applying?
o The court seems to be looking at the UNREASONABLENESS OF SURROUNDING AREA.
o Why is the piggery the unreasonable use and not the houses?
 Piggery came first. Operate well. Sought permission from housing authority.
o Court says because the area is becoming more suburban and the piggery is likely to cause more
trouble in the future. IMPEDING GROWTH. UNREASONABLE DETERRENT.
 The TIMING of this is important too. What if the homeowners had sued back in 1950?
o There may have been a difference in this opinion if there had been a few houses in a mostly rural
areas
o ZONING LAWS are influential
 The PURCHASED INJUCTION seems like the most EQUITABLE RELIEF in this case. What would be the
consequences of imposing purchased injunctions in these situations? MORAL HAZARDS
o Incentive to be a free rider, let the neighbors pay and not join lawsuit
o Incentive for farmers to create a nuisance – moral hazard
o Precedent that allows homeowners to condemn properties and pay people off to make them move –
we don’t usually give private property owners powers like this. That is more a govt. function through
eminent domain.
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Page County Appliance Center, Inc. v. Honeywell, Inc., Iowa 1984, pp. 370
 TVs being interfered with by computer center radiation (maintenance by Honeywell).
 Was this an UNUSUALLY SENSITIVE USE (Defense)?
o Is this a normal use of property or an unusually sensitive use of the property.
 When was this action brought?
o The TV store got there first…
o Was this brought at a time when nobody had TVs or when everybody had TVs
 What are the factors the court has to consider when determining “unreasonable” interference?
o Jury has to consider the UTILITY of a network computer for the travel agency
o BATES TEST FOR UNREASONABLENESS
 Manner in which and place the ∆s business is conducted
 Circumstances under which the ∆ operates
 Priority of location
 Character of neighborhood
 Nature of alleged wrong
 Character and gravity of injury
 Utility and meritorious-ness of the ∆’s conduct.
o Courts weigh HARD HEALTH AND SAFETY HARMS more heavily than “soft/small harms” like this.
 Substantial Factor Test  WHO SHOULD BE ∆: Issue of material participation (did ∆ materially participate
in the creation of the nuisance?) Design permitted radiation even though there seem to have been other
ways to do this/minimize the effect of the nuisance. So whoever materially participates is a proper ∆.
RESTATEMENT ANALYSIS:
(1) Has D invaded the use and enjoyment of P’s land?
(2) §829A – Is harm severe and greater than π should be required to bear without compensation?
 If YES, nuisance liability for ∆; If NO, go to (3)
 Start with this because if harm is severe, plaintiff gets compensation regardless
 Certain harms may be so severe as to require a holding of unreasonableness as a matter of law, regardless of
utility.
 Particularly true if invasion is physical in character
(3) §826(b) – Is harm serious and could ∆ still afford to continue the activity after compensating for this and
other similar harm to others?
 If YES, nuisance liability for ∆; If NO, go to (4)
 Serious harms are less than severe harms. Give money for serious harms, but not if it puts ∆ out of
business
(4) §826(a) – Utilitarian Approach – Does gravity of harm outweigh utility of ∆’s conduct?
 If YES, nuisance liability for ∆; If NO, then there’s no nuisance liability
 This is the balance of utilities fallback provision
π gets two chances to prove seriousness/severity of harm (rights based) before going to utilitarian approach
§827 – Gravity of Harm – Factors Involved
(a) Extent of harm involved
(b) Character of harm involved
(c) Social value law attached to type of use or enjoyment invaded
(d) Suitability of particular use or enjoyment invaded to character of locality
(e) Burden on person harmed of avoiding the harm
§828 – Utility of Conduct – Factors Involved
(a) Social value law attaches to primary purpose of conduct
(b) Suitability of conduct to character of locality
(c) Impracticability of preventing or avoiding the invasion
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§941 – Injunction or Damages? Once liability is determined, what is the remedy?
 Consider relative hardship on parties – hardship likely to result to ∆ if injunction is granted and hardship
likely to result to π if injunction is denied
 Balancing of Equities – consider who caused harm, if π came to nuisance, etc.
 This is important in cases of ENCROACHMENT – If ∆’s building a 5 story building that just crosses over
onto π’s land on one floor, it’s better for π to build around this than for ∆ to re-do the entire building.
Jost v. Maryland Power Cooperative, Wisconsin, 1970 (USES INDIVIDUAL RIGHTS BASED APPROACH)
 Damages to crops and loss of market value of farmlands due to high sulfur content in coal emitted from a
coal burning electric power plant. π asking for damages. What is the measure of damage? 5% crop damage.
 ∆ argument
o We aren’t liable because we weren’t negligent
o Should have been allowed to introduce evidence showing the utility of their business.
 Court response to first argument: Just because you are non-negligent does not mean you are not liable for
nuisance. DUE CARE IS NOT A DEFENSE TO NUISANCE
 Court response to second argument: The law of Wisconsin does not allow for the balancing of utility of
the offending conduct against the gravity of the injury inflicted, in an action for money damages.
 Even if π is seeking injunctive relief the same rule of not balancing utilities may still apply.
Boomer v. Atlantic Cement Company, NY 1970 (USES UTILITARIAN APPROACH)
 Pollution and damage of almost $200K from cement co. π were there first and co. knew there was likely to be
damages + risk to population. Private company. BUT co. employs 300 people and does $45MM of business.
Employs most modern pollution prevention. Cement is useful.
 REMEDIES court is considering:
o Damages and no injunction (∆ wants)
o Postponed injunction – 18 Months for now (π wants) –Granted this which would be lifted once past
and future damages were paid to πs
o Immediate injunction (not considering)
 Plaintiffs Arguments
o Precedents
 When harm not unsubstantial – injunction should be granted – slight injury not a good
reason for refusing injunction.
 Cannot use precedent to compare public utility to private company – public utilities are
imbued with the power or eminent domain.
o Policies
 Since this is continuing damage – awarding damages is not accurate
 Environmental damages – greatest hazard to human health
 Effectively condoning their activities
o Institutional Competence
 Court proper forum to push forward environmental policies
 Defense Arguments
o Precedents
 Conceding nuisance— wants to be able to pay money damages not an injunction – balance of
utilities.
o Institutional competence
 Who is the proper institution to make law – courts or legislature
 What if π decides to move and sells it to Ms. Jones.
o It seems to fair to both sides to grant permanent damages to plaintiff which will terminate the private
litigation. The theory of damage is the “SERVITUDE ON LAND” of plaintiffs imposed by defendant’s
nuisance.
o This essentially grants the cement company to pollute that land permanently. Precludes future
recovery by plaintiffs. Do they have to disclose to future owners?  Property prices will go down IF
they are required to disclose the nuisance to the new owner.
10
II. INTERFERENCE WITH LIGHT AND AIR
Spur Industries v. Del E. Webb Development, Co., AZ 1972
 Facts related to nuisance: A million pounds of manure per day; Smell (soft aesthetic harm); Flies etc. (hard
health harm)
 What is Del Webb’s claim against Spur? And what relief does he seek?
o PUBLIC NUISANCE CLAIM – is one affecting the rights enjoyed by citizens as a part of the
public. The nuisance must affect a considerable number of people or an entire community or
neighborhood.
o Defense – hypersensitivity – old people are more susceptible to disease…
 This land was NOT ZONED – not supposed to be only agricultural or only residential.
 Arguments for Spur
o π CAME TO NUISANCE – you should be barred from being able to recover
o You ASSUMED THE RISK
 Court found that a public nuisance exists in this case even thought it was Del Webb’s fault.
 Arguments for Del Webb
o Elderly people have been taken for a ride by Del Webb –shouldn’t hold them responsible for the
public nuisance
 Counter  Residents should have noticed or known and now they get to have a DOUBLE
BENEFIT—CHEAPER ORIGINAL PRICES + SHUT DOWN SPUR
 The court orders a PURCHASED INJUCTION – π gets injunction but has to compensate Spur for the cost of
shutting down here. EQUITABLE RELIEF compared to regular injunction.
 CONSEQUENCES: Business owners/developers probably stopped being the plaintiffs in this case – probably
get homeowners to be plaintiffs or public officials since public nuisance actions are for dangers to public
health, public safety, public morals etc.
 If PUBLIC OFFICIALS are bringing the case and they get a purchased injunction – they can SPREAD OUT
THE COST with property taxes etc.
Fontainebleau Hotel Corp. v. Forty-five Twenty-Five, Inc., Fl. Dist. Ct. 1959
 Motive behind building this tall building – historic animosity between the two owners.
 Eden argues Nuisance  the Fontainebleau’s addition in this particular location is a interferes with Eden’s
right to enjoy it’s property
 Also argues Prescriptive Easement  Limited right to use or control use of another
 Negative Easement is the right to prevent somebody from doing something on his/her property…
o Can purchase from owner
 NEGATIVE EASEMENTS BY PRESCRIPTION NOT ALLOWED because affirmative easements GIVE
NOTICE as a landowner that somebody is acquiring rights to your property, negative easements DON’T GIVE
NOTICE to owner.
 Alternatives:
o Nuisance argument: Spite fence – the selected location for this addition was out of Spite
o Gone to zoning commission asking for height regulation.
 Interferences with light and air are PER SE EXCLUDED from nuisance law.
FONTAINEBLEAU RULE:
Cannot acquire negative easement (for light and air) via prescription
Interferences with light and are PER SE excluded from private nuisance law
11
Prah v. Maretti, Wisconsin 1982, pp. 403
 Prah says his ability generate electricity from his solar panels will be interfered with if Maretti builds his
house, but he did not build house in center of lot – could have avoided shade.
 Court REJECTS PER SE EXCLUSION of light and air from nuisance law.
Strongest Rights Based Arguments
 Right to freedom of action and to use property how they want to
 Foreseeable that others will develop property and protect themselves from potential incompatible uses
(reasonable expectations). BURDEN to AVOID HARM on π.
 No liability without fault
Strongest Social Utility Arguments
 Court should protect π’s reasonable investment
 Freedom of action → promote investment in the land → development.
 Each owner inflicts costs on the other
 Free market
 Original justifications for exclusion of light and air from Nuisance (maybe antiquated as found by Prah
court)
o Sun is only aesthetic
o Societal interest in free development Less interest in development now.
 HYPERSENSITIVE USE
 Not suitable to locality.
Strongest Judicial/Institutional Role Arguments
 Conflicting precedent but not reliable to count on earlier decisions just as social values change.
 If π didn’t take steps to protect his investment reasonably, court shouldn’t protect him.
 Function of legislatures, not courts, to take new rules into account regarding sources of energy, etc. and to
change legislation.
 Function of judges to take note of changes in policy and energy issues.
Strongest Administrability Arguments
 π’s flexible rule creates too many problems → un-administrable for judges
 Breeds litigation to have flexible rule? / Rigid rule keeps it out of court
 Rigid rules too strict, need to be flexible, times are changing.
 Promote justice and prevent judges from blindly applying rule
 πs want flexible rule, ∆s want rigid Fontainblue rule.
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1. Rights Arguments
Concern justice and fairness in social relationships. P claims D’s conduct has illegitimately deprived P of right to be
secure from harm. D says that interest claimed by P does not merit protection and D claims legally protected
interest in her own freedom of action
P’s Arguments for Security
D’s Argument for Freedom of
Action
Rights
Right to security
Right to freedom of action
Morality
Altruism
Individualism
Compensation
No liability without fault
Reasonable Expectations
Foreseeability
Foreseeability
Justified Expectations
Justified Expectations
Distribution: Who should
Cost internalization
Self-Reliance
bear loss?
Equality
Equal right to security
Equal right to develop
2. Social Utility Arguments
Concern efforts to promote general welfare or maximize social wealth. Consequentialist in outlook. They judge legal
rules by their consequences
P’s Arguments for Security
D’s Argument for Freedom of
Action
Behavior Modification;
Encourage safe construction
Encourage self-protection
Investment in Safety
Promotion of Investment
Secure investment
Competition
Cost internalization
Cost internalization
Deregulation of economic
activity
Transaction Costs; Efficiency
Most valued user
Free market
3. Judicial Role Arguments
Concerned with proper spheres of authority of legal institutions and proper relations among separate branches of
government in legal system
Arguments for Judicial
Arguments for Judicial
Activism
Restraint
Precedent
Narrow holding
Broad holding
Distinguish a precedent
Reconcile apparently conflicting
Promote justice
precedents
Stare decisis
Institutional Role
Judicial activism
Judicial restraint
Purposive interpretation of
Textual interpretation of
statutes
statutes
Institutional Competence
Deference to the legislature
Judicial responsibility
4. Formal Realizability or Administrability Arguments
Concerns proper form of legal rules. Rigid rules give clearer guidance about rights, yet rules lack flexibility and may
interfere with ability to obtain justice. Flexible standards allow contextual judgments, yet provide judges with
discretion that they may abuse
Arguments for Standards
Arguments for Rules
Predictability versus
Flexibility
Predictability
Flexibility
Predictability
Flexibility
Relation Between Form and
Promote justice
Prevent arbitrary judicial
Judicial Role
discretion
Relation Between Form and
Rules allow the bar person to
Rules facilitate implementation
Substance
walk the line
of policy goals
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III. ZONING: GOVERNMENTAL LAND USE PLANNING
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In the US, this is usual ex-ante. Comprehensive, long-range land use planning (top down)
To avoid conflicting/incompatible land uses that may result in nuisance
State governments enjoy “police power” to enact and enforce regulations promoting public health, welfare,
and safety (much broader than enumerated legislative power)
Delegate to municipalities to regulate land use to advance this police power to enable acts.
Use zoning
Area zoning – height restrictions, etc.
Zoning to prevent nuisance?
 Pendoley, Spur— Use zoning for residential vs. agricultural areas
 Jost, Boomer— Keep factories/plants separate from residential
 Fountainebleau – Zoning height requirements
Issues with zoning:
 New tech is hard to anticipate
 Hard if people own land and there are already conflicting purposes in existence
 Transition problem in the US (started doing this regulation in the 1920s) → does this constitute a TAKING?
(Amber Realty)
Stone v. City of Wilton Case, Iowa, 1983
 πs bought an undeveloped parcel of land to develop low-income housing. Before they started construction,
re-zoned to only allow single-family homes due to inadequacies of sewer, water, and electric services.
 π arguments
o This is a TAKING and they deserve compensation.
o Zoning depends on reasonableness and this change is not reasonable.
o Private economic interests of a member of zoning board
o Racially motivated
 ∆ reasoning
o Zoning law no longer appropriate to current and anticipated growth of area
o Current zoning would create greater density than appropriate
o Create traffic and pedestrian issues
o Electrical, water and sewer systems inadequate – Public health and safety issues
 Courts usually apply RATIONAL/REASONABLE BASIS SCRUTINY in zoning cases.
o Reasonably related to health, safety, development etc.
 Courts usually apply HEIGHTENED SCRUTINY in racially motivated cases.
o No basis for that claim here.
 Also heightened scrutiny if the π has VESTED RIGHT in the property to stay zoned as it is now
o Court says NO VESTED RIGHT: belittles their investments, even though it’s $7,900 dollars, 
architectural plans not very detailed, no construction bids, no contracts, no materials
o Courts look at
 Type of project
 Location
 Amount that was invested
 How much was accomplished (If they had completed 90% they would have had vested right)
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4. TAKINGS LAW
Under what circumstances does a state/local governments exercise of Police Power/Regulatory Power go
too far and constitute a Taking for which they have to compensate?
1. 5th Amendment Takings Clause: Provides that private property shall not be “taken for public use without
just compensation.”
a. Grants gov’t the power to take your property so long as it does so for a public use or purpose
and pays you if it does.
b. Allows gov’t to exercise eminent domain power and acknowledges that gov’t can take your
property if it does so for just use/pays you just compensation.
c. 14th Amendment makes Takings Clause applicable to state and local governments.
2. 10th Amendment: The powers not delegated to the US by the Constitution…are reserved to the States
respectively or to the people.
a. States retain/enjoy broad general police power (no compensation if it’s justified police power)
b. To regulate property to promote general public health, welfare, and safety. Power to ZONE +
otherwise regulate land
3. How to determine whether regulation affecting property rights is a:
a. Uncompensable exercise of police power or regulation
b. Compensable taking
4. 1800s-1920s
a. Many regulations of land use were upheld even though the regulations deprived owners of value of
their land – no “taking” was found by the Court
5. Recent cases:
a. Penn. Coal v. Mahon (1922): establishes the foundations for today’s modern Takings jurisprudence
at the SCOTUS today.
I. POLICE POWER AND PROPERTY RIGHTS
Penn Coal v. Mahon, SCOTUS 1922, pp. 1098
 State passes statute that prohibits mining companies from mining in a way that undermine support
for the land. Coal company is UNDERMINING the support of Mahon’s house. Mahons sue the coal company –
we gave you permission, but the statute prevents it.
 Penn. Coal argues state statute exceeded scope of police power and constitutes a taking.
 Court held: statute exceeded the legitimate scope of the police power by wrongfully infringing on
constitutionally protected property rights.
 Is this about protecting a private entity from harm or the public from harm?
 Holmes: Majority (protecting a private entity – more limited view of police power)
o Factors that suggest it is:
 Compensable: Holmes says this is COMPENSABLE b/c it is a taking
 Diminution of value of property of the coal company. (Right to coal is the right to
mine for coal so if they can’t mine without violating the statute, their property is
substantially diminished.
 Public v. Private Harm: statute is just preventing a private harm (single private
house) not about state regulation of public harm.
 Brandeis: Minority  Uncompensable (protecting the public – extensive view of the police power to
regulate without paying)
o Restrictions/regulations imposed to protect the public health, safety, morals from dangers
threatened are not a taking.
o This act/law is about protecting the public from harm and even though some private individuals
receive benefits it is still aimed at the public. This sort of mining would threaten public welfare.
 What is the end result for the state here, saying that that statute effectuates a taking?
o In light of Holmes’ holding that this regulation goes too far, the state either has to rescind the statute
or pay anyone whose property has been taken.
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Village of Euclid v. Amber Realty, SCOTUS 1926
 Amber owns property, which is re-zoned. He says that this is a taking.
 How does the court analyze whether the zoning is a compensable taking or an un-compensable exercise of
the police power? They use the “Rational Basis” test.
 Since the apartment houses are parasitic in nature, they could be excluded from residential, single-family
homes. The desirability of a neighborhood is, in the court’s opinion, greatly diminished by apartment houses.
 Zoning proper and NOT A TAKING.
II. COMPENSABLE TAKINGS VS. UNCOMPENSABLE REGULATION
What Constitutes a Taking under Modern Supreme Court Jurisprudence?
1. Two Types of “Per Se” or Categorical Takings Bright Line Rules (if you own property you want to fall in here)
 Gov’t mandated permanent physical invasions of property (Loretto, Kaiser, Pruneyard – room for arg. here)
 Regulations that completely deprive an owner of all economically viable use of her property (Lucas) –
unless to avoid nuisance
2. If NOT PER SE taking
 Apply multi-factor “ad hoc, factual inquiry” to determine whether justice and fairness require
compensation to aggrieved property owner
o Ad hoc factual inquiries focus on 3 factors
 Character of gov’t action
 More like a trespass/physical invasion required by gov’t?
 Extraction of benefit for good of community? Harm preventing? Benefit conferred on
public?
 Regulatory program adjusting benefits/burdens of economic life—Average
Reciprocity of advantage?
o Who bears the burden
 Economic impact of the gov’t action
 Does regulation deprive owner of all viable uses of land?
 Manipulation of denominator issues? Air rights?
 Interference w/property owner’s reasonable investment-backed expectations
Miller v. Schoene (1928)
 Millers own red cedar trees on their property and are asked to cut them down per the VA Cedar Rust Act
because of disease. Millers say they have the righto be compensated for the taking of their property.
 Miller Argument: Nuisance law might look to “coming to the nuisance” and the character of the
neighborhood. Cedar trees were indigenous. This is only potential nuisance it hasn’t happened yet.
 Court: UTILITARIAN ANALYSIS: When the choice between two items in unavoidable, and the legislature
acted reasonably in making the choice in light of social policy considerations, there is no violation of Due
Process.
o Here, apple growing was one of the principal agricultural pursuits in VA. Apple was expected,
makes millions, employ a lot of people, and induced the development of the railroad and cold
storage facilities.
 HYPERSENSITIVITY as a DEFENSE: Apple trees are the only ones susceptible here. Utilitarian argument is
that cedar trees are pretty worthless but apple orchard is valuable.
 Private vs. Public Interest here.
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Penn Central Transportation Co. New York City, SCOTUS 1978
 What are the restrictions on buildings that have been designated landmarks? Have to upkeep the façade.
Penn Central wants to make a change, build 55 storey tower, applies to board, gets rejected.
 Penn Central sues. Since this is not a Per Se taking the court will look at the three factors below.
1. Character of the Govt Action
2. Economic Impact of the govt. action
3. Interference with the property owners reasonable investment-backed
 What are the strongest arguments for Penn? (CHART ON 1120- 21)
Character of the government action
o Like a physical invasion by the govt. – Taking
o Singling out owner to bear burden – Taking – only 400 buildings out of millions. That’s not what
courts call the average reciprocity of advantage – all hurt a little bit, all benefitted a little bit.
o Programs adjusting the benefits and burdens of economic life to promote the common good =
“AVERAGE RECIPROCITY OF ADVANTAGE”  not a taking  what the majority concludes we have
here.
o NO PUBLIC HARM HERE? Preventing a harm vs. CONFERRING A BENEFIT
 Majority also points out that the ECONOMIC IMPACT NOT SEVERE
o They can use land as they have for decades. NO VESTED INTEREST
o They still have Transferrable Development Rights – if you are prohibiting from building on top of
your building here, you can transfer that right to another property, and go beyond the permissive
height zoning.
III. CATEGORICAL TAKINGS – PHYSICAL INVASIONS
Pruneyard Shopping Center v. Robins (1980)
 Pruneyard is a privately owned shopping center in CA. They have a policy not to let any visitors engage in
publicly expressive activity. Robins are high school students who sought support for Zionism and were
asked to leave
 The California Supreme Court says they should be allowed to hand out leaflets. Like NJ in NJ Coalition – The
states go farther than the federal constitution in Lloyd v. Tanner.
 Pruneyard says this constitutes a taking of their property – taking their right to exclude
 Precedential support – Kaiser Aetna – Government tried to make a private pond open to the public, that
was declared a taking.
o Court says in Kaiser, government action interfered with plaintiff’s reasonable investmentbacked expectations
 Here, Pruneyard fails to demonstrate that the right to exclude is so essential to the use/economic value
of their property that state-authorized limitation = Taking
 REHNQUIST writes the court’s opinion that’s is not a taking, and he’s usually big on finding takings
(dissented in Penn Central)
o AD HOC FACTOR Analysis— Economic impact is minor – there’s Public Benefit in Free Speech
o PER SE TAKING Analysis (Permanent Physical Invasion) – Mall can impose time/place/manner
restrictions and the “invasion” isn’t permanent
 POWELL Concurrence – Danger in a state compelling a person to affirm a belief he does not hold.
o Here though, it’s unlikely that Pruneyard’s customers would assume appellee’s speech represents
Pruneyard’s views
 This case shows the link between takings and free speech rights – STATES CAN GRANT GREATER
RIGHTS THAN THE US CONSTITUTION SO LONG AS THEY DON’T INTERFERE WITH THE TAKINGS
CLAUSE (because that would limit rights)
17
Loretto v. Teleprompter Manhattan (1982)
(Gov’t mandated physical permanent invasion is a per se taking)
 NY passed a law which prohibited interference by a landlord in the installation of cable. ∆ installed cable
facilities that occupied portions of roof and the side of her building. ∆ claimed TAKING. NY courts affirmed
constitutionality.
 Holding: Both PRECEDENT and historical circumstances support the rule that a minor but permanent,
physical occupation of an owner’s property, authorized by government constitutes a “taking.”
 Conflicting rules – Regulation of use of property to promote public interest (OK) vs. physical invasion of
government (per se taking)
 Marshall Bright Line Rule: Permanent Physical Occupation is more serious and intrusive than either a
temporary intrusion or an intrusion that merely restricts the use of property. Requires Compensation even
if Minor.
 Best Arguments for Rigid Rules
o Ensures predictability & gov’t knows what will happen whenever it mandates this
o Promote judicial administrability and cut down litigation
 Dissent:
o Not permanent—because only applies to residential buildings.
o The lines could be infinitely small and at some point they could become de minimus
o Gov’t should have discretion for things like mailboxes, smoke detectors etc. and bright line rule
won’t work there.
IV. CATEGORICAL TAKINGS – DEPRIVATION OF ECONOMICALLY VIABLE USE
Lucas v. South Carolina Coastal Council (1992)
 1986, Lucas purchases 2 lots near coastline for about $1 million.
o 1988, Beachfront Management Act land beyond that baseline cannot be constructed upon (Lucas
land passed the baseline point). Public service perspective = beach nourishment
o 1977, Coastal Zone Management Act required owners within coastal zone “critical area” to have
permit before committing the land BUT no portion of Lucas’s land was within that critical area
 After 1988 Act, Lucas claims his property now has no economically viable and there is a Takings. Lower
court agrees—Act completely extinguished his property’s value. (Factual conclusion that much be
accepted). SC S.Ct. rev’d saying that this was a viable use of the state’s police powers to prevent serious
public harm and thus no compensation is owed. If no reasonable alternative uses for the property, then
compensation owed
 Holding— Scalia:
o Where the state seeks to sustain a regulation that deprives the land of all economically viable
uses has to pay unless use being regulated would have constituted a nuisance or courts would
have found that the uses of the property would have constituted a nuisance
o May resist compensation ONLY IF the prohibited use interests were not part of his title to begin
with
o Four Factors:
 Degree of harm to surrounding land and resources
 Social value of activities
 Suitability of activities to locality in question
 Relative ease which alleged harm can be avoided
o Scalia mistrustful of the legislature in terms of deferring to them for issues of serious public
harm—b/c they can just always claim “public harm” and get away with it.
 Kennedy Concurrence
o Scalia’s test for when legislature has control isn’t flexible enough—b/c now legislature can
only prohibit what courts could prohibit under nuisance.
o Reasonable expectations of the property owner must be understood in light of whole of legal
tradition— here Lucas paid a lot b/c he thought he could build—state regulations need to be in
accordance with expectations.
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Palazzo v. Rhode Island, SCOTUS 2001, pp. 1158
 P purchased 20 acres of property of mostly tidal wetlands. RI law regulating wetlands already in place.
Property includes a small upland (not-wetland) portion worth $200k and could have built one home there.
He challenges RI regulating wetland as a taking for him
 RI S.Ct held that
1. Claim was not ripe
2. π was not deprived of all economic viable use of his property under Lucas b/c he could build on
upland property (only $200K).
3. When π acquired title to the property from the prior owner, the law regulating coastal
development was already in place— so π has no reasonable investment backed expectations that
he would be able to build.
 SCOTUS did not make a ruling on (2). But Argument be for Palazzo that Lucas applies to him or does not.
DENOMINATOR ISSUE
o 90% or something of his property was taken—may as well be 100%.
o Federal circuits have sometimes used that the denominator is the developable tract.
 On (3) Court said that just because the law was already in place does NOT mean it was a Background
Principle of State Law
o Under Hunziker v. State (can’t build on burial grounds) a property owner is probably deprived of all
use, but if it’s a 100 acres to a developer, probably less of a argument that he is deprived of all
economically viable use because land can be sub-divided.
o This reverses a part in Lucas that said if you pass law earlier, it forms a background principle of
property law that shapes owners expectations
 Now, it has NO effect on expectations
o Thus, we don’t know when, in Scalia’s mind, a law becomes a background principle of property law
 Court finds it’s not a 100% taking so Lucas rule doesn’t apply (not a per se taking), remanded to
determine if it’s a taking under Penn Central test.
Tahoe Sierra Preservation Council v. TRPA
 Temporary moratorium on building not a taking.
V. EMINENT DOMAIN – PUBLIC USE REQUIREMENT
Kelo v. City of New London, SCOTUS 2005
 Requirements for property to be taken:
o Public Use
o With Just Compensation
 New London is in really bad shape and needs this boost. Kelo’s interest has to take a backseat to the larger
interest. High unemployment, low income etc. The superior court said that the govt. could not take the land
in parcel 4A but they can take the land in parcel 3. Ct. S.Ct found that all the city’s takings were valid.
 Bullock’s Oral Argument— The only permissible action on part of the government, under eminent
domain, is something that is bad/blighted? Because the TAKING has to be justified for the public use.
 Argument on the side of the City of New London
o Berman (DC Case) – don’t look at community development on a piecemeal basis (even unblighted
property should be amenable)
 Economic revitalization is a legitimate const. public purpose
o Midkiff (Hawaii) – Property wasn’t bad/blighted – interest a land oligopoly removing artificial
deterrents to the normal functioning of the state’s residential market.
 It’s the Taking’s Purpose, not the mechanics that matters.
 Judicial deference
o If the property is likely to become blighted—prevention of possible future blight.
 Kelo Argument
o Both of these are distinguishable from the current case because these were correcting an
affirmative harm.
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Also, judicial deference should not apply in this case because legislative bodies have incentive to
give property to large corporations etc. cause that’s easier to do (as opposed to building highways
etc. which is a harder decision).
Steven’s Majority: Economic development taking can = const. public use, even if condemned area isn’t
blighted.
o Steven’s test does not have a limit on the eminent domain power.
Kennedy Concurrence: Stricter scrutiny if such taking benefits identifiable private party.
O’Connor Dissent: Economic development takings are unconstitutional (absent blight or other affirmative
harm in condemned area)
Thomas dissent: Public use = Public use.
After Steven’s opinion, are there any limits on state’s power to take property from A and transfer it to B?
o Don’t need a bright line rule, even though you’re worried that property will be transferred from
Citizen A to Citizen B—this is not this case—don’t want to worry about that now.
Extreme judicial deference is not consistent with the lack of certainty that Pfizer would actually revitalize
their economic (ultimately pulled out)
A number of states have made takings clauses much more strict than the federal standard.
Left with a very deferential standard.
o
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***IMPORTANT: No need to figure out whether a taking has occurred when the government is exercising it’s
Eminent Domain problem—have to look at whether it’s for a public use and whether there was just compensation.
V. JUST COMPENSATION
What do you get when your property has been condemned?
 Just compensation = fair market value = amount property would likely sell for the open market.
 Based on objective damage suffered by owner, not the benefit attained by govt. not subjective valuation,
not replacement cost.
 Kimball Laundry: “Loss to the owner of the non-objective value, like the loss due to an exercise of police
power- is treated as a burden of common citizenship.”
 Will NOT compensate:
o Moving costs, business goodwill or going concern value.
 State will not compensate for idiosyncratic or subject value of property.
 State are introducing SUPERCOMPENSATION (e.g. 150% of FMV) for taking of homes and small businesses
o Arguments in favor
 Moving costs, mortgage costs, emotional costs.
 Keep the government from being cavalier about taking people’s property.
o Against
 Encourage hold outs
 The value depends on where the market is right now.
 150% is too much – unfair enrichment.
 Just compensation is decided at the state level usually.
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SERVITUDES LAW
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

Can authorize a non-owner to enter property for a specific purpose
o Right of way easement
Embody property owner’s promise to do or not to do something on her own property
o E.g. easement for light and air
o E.g. promise to maintain particular type of use on one’s property, promise not to compete
Examples we have come across so far?
o Prescriptive Easement (Gravel lot - Community Feed Store)
o Negative Easements by prescription (Fontainblue)
o Servitude on Land: Right to pollute once compensation has been paid (Atlantic Cement)
Types of Servitudes
 Easements
 Real covenants
 Equitable Servitudes
Themes re Servitudes
 Formalities required for creation of servitudes and when formalities are excused
 Interpreting ambiguities in agreements
o Presumptions; public policies; gap filling rules
 Servitudes as obligations that “run with the land”
4. EASEMENTS
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
An easement is the limited right to use or control the use of someone else’s property.
o Affirmative – use of land
o Negative – can’t build to block
Substantial Property Interest
I. EASEMENTS CREATED BY EXPRESS AGREEMENT

Formalities
o To create an easement, need
o Writing signed by the grantor
o Per statute of frauds in every state
II. EASEMENTS CREATED BY ESTOPPEL
Holbrook v. Taylor (Ky. 1976)
 H buys land in 1942, gives right to build a road, which was used until 1949. Tenant house also used this road.
Taylors come along in 1964 and buy house on land adjoining the Holbrooks. Road used for Taylors to haul
building materials and also to get to the main road. No permission in writing.
 Issue: Dispute arises over why the Holbrook’s want the Taylor’s to sign waiver of liability and also say they
had no right to use the road. Holbrooks put up a steel cable and prevent the Taylors from using the road.
 Taylors want the court to adopt a theory under which the formalities for the creation of an easement
are forgiven in this context.
 Arguments for the Holbrooks— Should not loosen formal requirements for easements.
o Taylor’s should not get something for nothing.
o Statute of frauds— avoid fraud, predictability, certainty
o Should not be punished for being neighborly
o Don’t promote irresponsible behavior
 Taylor’s arguments— Court should loosen formal requirements and recognize easement in this case.
o They reasonably relied on permission granted.
21
Flexibility given that this is a neighborly relationships—“One’s word was considered their bond”
asking for writing would have been embarrassing.
o Made improvements in reliance upon this.
Court says: This was REASONABLE RELIANCE on their word. Where a license is not only entry but includes
the right to erect structures, licensor may not revoke even if other requirements are established. Taylors
relied upon and made improvements to the land.
o

III. EASEMENTS CREATED BY IMPLICATION FROM PRIOR USE AND NECESSITY
Granite Properties Limited Partnership v. Manns, IL 1987, pp. 439
 Trucks servicing the shopping center are making use of a U shaped driveway. It’s a mess in the back and they
can’t go back the way they came so they make use of the U shaped driveway through the Mann’s property,
which Granite sold to the Manns. Granite said nothing to Mann about the usage of the trucks. AFTER he
purchased the property—Mann had a survey done and then realized that the trucks were on their
property. Granite wants to keep using.
 EASEMENT IMPLIED FROM PRIOR EXISTING USE Requirements
o Common Ownership
 Common prior ownership of claimed dominant and servient parcels.
o Prior Use
 The common owner previously used part of the land for the benefit of another part, and such
use was apparent, continuous and permanent; and
o Reasonable Necessity/Convenience
 The claimed easement is reasonably necessary and or convenient. Very Loose.
o If these requirements exist: Easement will be implied/inferred by the courts.
Policy justifications in favor of GRANITE
Rights based
 Mann should have known what they were buying. Since it was using the strip for trucks for years. It was obvious
that our trucks would continue to use.
 Seems that the contract was for land only up-till the driveway—the Manns did not know till after they conducted
the survey that they driveway was on their property.
Social Utility.
 Argument to be made in favor of Granite to say that the courts should enforce the intended contract
between the parties. This is more efficient.
Judicial Role
 Why this should not be left to the markets. Hold-up problem—the Manns may exploit this mistake and ask
for a much higher price than usual.
Policy justifications in favor of MANN
Rights based
 Mann paid for the property and should not have to give up their rights because Granite did not think to not
sell this land.
Social Utility
 Why did Granite not just keep the land, instead of selling it?
 Why did Granite not put the easement in the contract?
 Granite made the mistake here, and Mann should not have to pay for that mistake—they should rule in favor
of the innocent party.
 Courts should encourage putting easements into the deed by punishing people who do not—bad policy and
bad incentive.
Judicial Role
 Not role of judges to come in and provide relief to unintelligent business people.
 Courts should enforce the party’s agreement.
 Why this should not be left to the markets for Mann it should be left to the market.
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
Suppose court adopts an Easement Implied by Prior Use. Mann’s best arguments that Granite has not
satisfied the requirements?
o Common Ownership
o Prior Use: The common owner previously used part of the land for the benefit of another part, and
such use was apparent, continuous and permanent; and
 Yes it was apparent, but permanent? What does permanent mean? Maybe the Manns thought
that they would stop court looks to the SOCIAL UTILITY it is reasonably beneficial
and necessary
o Reasonable Necessity/Convenience
 It is not IMPOSSIBLE for the trucks to turn around—but it will be a mess.
 Trucks can deliver to the front—it is possible but it is not REASONABLY NECESSARY or
CONVENIENT.
 This requirement is more “convenient and reasonably necessary”—it’s very loose.
Finn v. Williams, Ill. 1941
 Williams owned 140 acres. Sold to Bacon. Bacon sold to Finns. Zilphia got 100 acres (inherited) from
Williams. Finns only ingress/egress is through the Williams’ property and the property of the party to the
north. Zilphia has refused to let them use road— Finns can’t take livestock and produce to market. Can only
walk but not drive.
 Options:
o Easements Implied from PRIOR EXISTING USE?  NO b/c no common ownership of dominant /
servient parcel here.
o Irrevocable License / Easements by Estoppel?  MAYBE, if reasonable reliance and
improvements?
o Adverse Possession?  NO b/c it was permissive before and not adverse/hostile.
 William’s arguments against the Easement by Necessity
o The other two owners don’t have to—so why does she.
o Two parties buying should negotiate at the beginning—in purchasing a huge tract of property you
should have put in the deed whatever you need to make efficient use of property.
o Changed circumstance is not her fault.
o Principle goes back way too far, 1895, and imposes too much of a burden on “common prior owner”
o Bad precedent—wrong incentives for parties to buy landlocked parcels and then assume the courts
will take care of them.
 Court holds that’s there is an EASEMENT BY NECESSITY: Firmly established principles control. Where an
owner of land conveys a parcel thereof, which has no outlet to a highway except over the remaining
lands of the grantor or over the land of strangers, a way of necessity exists over the remaining lands
of the grantor.
 Courts focus on the efficient use of the property OVERRIDING CONCERN OF PROPERTY LAW to not
render the property useless.
 STRONG NECESSITY REQUIREMENT
o Schwab v. Timmons—court thought it was ABSOLUTELY necessary. The property was next to a public
road but building a way to the road would cost $700K.
o Court said easement is not absolutely necessary.
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IV. LIMITATIONS AND RUNNING WITH THE LAND REQUIREMENTS
Servient/Burdened Estate (tenement) = Property burdened by the easement (property across which right of way
is located) vs. Dominant/Benefitted Estate
Running with the Land
 Any future owner of the benefitted estate is benefited by the easement, and
 Any future owner of the burdened estate is burdened by the easement
3 Requirements for In order for burden of express easement to run with the land (barring exceptions):
 Easement must be in writing when created
 Original grantor must intend for future owners of burdened estate to be bound by the easement
 Subsequent owners of burdened estate must have notice
o Actual,
o Constructive
 Circumstances exist that you should have known—including records notice.
o Inquiry – The buyers should have inquired because it is apparent.
 E.g. Tire tracks running through the backyard of Nunziato’s land
Easements created by Estoppel, Implication, and Necessity generally are held to run with the land.
 If they were intended to do so (if the intent can be determined)
 And are reasonably necessary for the enjoyment of the benefitted estate.
V. APPURTENANT AND IN GROSS EASEMENTS
Appurtenant easement = easements attached to land ownership and owned by whoever owns the dominant estate
 Usually held by adjoining landowners
Easements in gross = not appurtenant = benefit of the easement is not attached to the land but is attached to an
individual.
 Held separate and apart from ownership of the land (Right to swim, or run wires)
 Can be commercial or personal
 Different rules than Appurtenant about transferring and sharing. More likely to be transferrable if
commercial.
Appurtenant v. In Gross  Transferring and Sharing Benefit: See Cox and Lupo
Appurtenant easements = easements attached to land ownership and owned by whoever owns benefited estate
 Preferred over in gross easements (Lupo)
 Transferring benefit: When dominant estate is transferred, benefit of easement is transferred
 Sharing benefit/divisibility: When dominant estate is subdivided, benefit of easement is shared/divided.
 Limits on sharing benefit of easement?
Green v. Lupo, Wash. 1982
 Lupo gave easement to Greens but then they started using their leased land for mobile home development
and loud motorcycles all the time. Lupo says it’s an Easement in Gross and others cannot use it.
 Don and Florence Green claim it is appurtenant
o Language about ingress and egress sounds like it’s about benefitting the land.
o Language is “To Don and Florence Green for ingress and egress for road and utilities purposes”—
court thinks this sounds like it is benefiting them but other language sounded like it was more for the
land.
o There is also a STRONG ASSUMPTION towards appurtenant easements in many states.
 If the motorcycles actually cause a nuisance, they are not prohibited from suing under nuisance laws.
 Court says that the easement is appurtenant but they can impose reasonable restrictions on the land.
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VI. SCOPE OF EASEMENTS
Cox v. Glenbrook (1962)
 Quill died and estate sold “quill property” to Johnson who sold to Cox and Detrick, who want to subdivide to
make residential area. Glenbrook operates a resort and golf course and only access Quill property through
the Glenbrook property road. Road only has enough room for one car to pass through at a time. Glenbrook
granted an easement in writing (Quill Easement) “over the roads of [Glenbrook] as now located” to Quill,
“his heirs and assigns forever.” Cox wants to widen road (2-way) for use by residents 40 to 60 people.
 Clearly APPUERTENANT: Says to grantees (heirs) forever. Suggested for the benefit of the land.
 Court Holds: They can share the easement with anyone who has property on the estate. BUT it says they
cannot widen the road.
 Why is the court being a stickler about the width of the road?
o Because the answer is gleaned from the INTENT OF PARTIES—but if that is the case, then isn’t that
inconsistent with the other part of the courts decision that the easement is shareable.
 It’s trespassory to widen the right of way. That’s too great of an incursion into the property
interests of Glenbrook.
 It’s like giving them an additional easement.
o But isn’t it changing the easement to allow a 120 people to use the road.
 No because the easement is for USAGE, NOT HOW MUCH they can use the road (KEEP in
mind nuisance laws) (Similar to Lupo)
 Arguments to be made of C&D to widen the road?
o Public policy, safety?
o Easement by necessity
 We are functionally landlocked is all we have is this one, one lane road.
 Counter: Created the necessity/problem then asking courts to fix at the expense of GB.
 Common prior owner? No common prior owner. “If at one time there has been unity of title”
 What if C&D purchased another adjoining property and wanted that land to have access through the back
road also.
o Maybe if you make a public policy argument
 Can C&D get an apt building on the land and let them use the land.
o Court can always rule later that all the people using the land is a nuisance or an undue burden.
Henley v. Continental Cablevision of St. Louis County, Inc. (1995)
 In 1922, π Henley’s predecessor conveyed a utility easement to SW Bell and Union Electric. The Easement to
SW Bell was “to construct, repair, operate, maintain, lines for telephone and electric light purposes.”
Easement to UE was “to keep, operate, and maintain wires, manholes etc.”
 Clearly IN GROSS EASEMENTS b/c transferred to utilities, which enjoy benefit of easements across this
burdened property. 60 years later, CONVEY EASEMENT to Cablevision, who wants to erect cables, wires, etc.
for cable TV.
 Issue – Can the utilities make these easements apportionable?
 Does Henley retain any right to easements?
o If the benefit of the easement is EXCLUSIVE of the grantor then they can further share it with
whomever they want.
o If Henley HAD retained an interest and shared the easement, then the phone companies will be
taking away something away from Henley if they give the easement to Cablevision.
Argument that Cablevision does/doesn’t enjoy the rights of Bell/Union electric?
 Original easement for rights to utilities and didn’t mention TV…
 BUT Can hardly be said that adding one coaxial cable to the existing poles increases the burden on the
tenement (servient).
 Loretto case  This is where a per se takings law rules comes from (permanent physical invasion mandated
by the gov’t that is trespassory constitutes a taking— even if just for cable wires.)
 If homeowners win, Cablevision can’t exploit rights granted by Bell and Union Electric. Expensive and
inefficient and increases cost of cable for everyone.
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5. REAL COVENANTS AND EQUITABLE SERVITUDES
I. INTRODUCTION



Promises made by landowners to use or not use one’s land in a particular way (Unlike Easements)
o Including affirmative obligation to do something on own land
o Including broad range of negative restrictions re use of one’s own land
Enforceable by and against succeeding owners of the benefited land and burdened land.
These RUN WITH THE LAND.
Major Themes:
 Covenants last forever and can burden property forever
 In order to burden land in perpetuity, there must be countervailing benefit to other land.
o Covenants can’t be held in gross – need both burdened and benefited land
o If conditions change substantially so the covenant is no longer of substantial benefit, the covenant
under that doctrine can be eradicated.
o Countervailing benefit must be present if original covenanting parties are in relationship in which
they have mutual interest in property – privity of estate.
For covenants to be enforceable and binding on successors in interest to land – courts traditionally look to 5
requirements:
(1) WRITING: Covenant must be in writing in the original docs
(2) NOTICE: Party to be bound must have notice of the covenant
 Actual
 Inquiry
 Constructive
(3) INTENT TO RUN: Original-covenanting parties must intend the covenant to be binding upon successors
(4) TOUCH AND CONERN: Subject matter of covenant must “touch and concern” the land
 Two part Analysis:
o Promise must have something to do with the (use or enjoyment of the) land and
o Promise must affect the market value of the land (increasing value of the benefited bland or decrease
value or burdened land) (or both) OR
 “Affect the quality, value, or mode of enjoyment” of the property
 Touch and concern promises call for promisor to do something physical in relation to land
 Types of promises that may not touch and concern land:
o Just to pay money (other than HOA dues)
o Historically, covenants restricting type of business on land (but this rule has been changed in modern
times) *ie. Non-compete  NOW typically viewed as touching the land.
(5) PRIVITY OF ESTATE: There must be privity of estate
 For successors in an interest to enforce and be bound by covenant, we need to examine BOTH horizontal
and vertical privity of estate
o Horizontal Privity: Relationship re land b/w original contracting/covenanting parties
 Majority rule: original-covenanting parties must be in a certain type of relationship
evidencing their mutual interest in the land. (Sale with promise to maintain residential use,
lease with promise, sale now, promise later)
 So long as we have either:
 Seller purchaser relationship (instantaneous privity)
 Lessor/lessee relationship (this is the only relationship that satisfies horizontal
privity in England (simultaneous privity)
26
o
 AND: covenant must be contained in the documents creating these relationships
Vertical Privity: Relationship re land b/w an original covenanting party and successor in interest
(subsequent possessor of parcel)
 Refers to relationship b/w original covenanting party and subsequent owner of the parcel.
 For strict vertical privity, P1 must transfer full and entire property right in the burdened
parcel to P2 and cannot retain future rights. (Leases etc. do not satisfy).
Equitable Servitudes
• Real Covenants (RC) and Equitable Servitudes (ES, Only first three requirements) are similar, except for the
remedy provided under each doctrine and the doctrinal requirements for each:
• Strict rules of RCs relaxed by equity courts.
• Traditionally:
• RC: remedy for breach is damages
• ES: remedy for breach is injunction
• ES: relaxes some of the strict, formal requirements necessary for enforcement of RC.
• To enforce a covenant as an ES (i.e., to get injunctive relief), must show first three
requirements (all except privity of estate).
Whitinsville Plaza v. Kotseas, MA 1979
 Kotseas owns several parcels in strip mall. IN 1968, Trust purchases parcel from Kotseas in reliance on
Kotseas’ promise not to compete with business that Trust establishes on parcel (discount store). Both
benefited parcel and burdened are transferred. Kotseas leases property to CVS.
 Does the covenant run to Plaza and does the burden run to CVS?
o All factors met (including Touch and Concern b/c non-competes are now said to satisfy EXCEPT
 PRIVITY OF ESTATE: there must be “privity of estate”
 Horizontal privity –Yes
 Vertical Privity –NO. Only leased, not all rights transferred. And for strict vertical
privity P1 must transfer full and entire right in burdened parcel to P2 with nothing
retained.
Winn-Dixie Stores, Inc. v. Dolgencorp Inc., FL 2007
 Covenant that nobody can use more then 500 sq. ft. of their store to selling groceries in the same complex.
Winn-Dixie sues both DG and Crest Haven (original covenanter).
 Can WD enforce injunctive relief under traditional rule of covenants? YES. Only need 3 for ES.
o Writing – Yes
o Notice (to Dollar General?) – lease was recorded in public records
 Yes there was notice—not only constructive notice but also as a sophisticated business party
there was implied notice.
o Intent to Run? – Language says “shall run with land”
o Touch and Concern? – Yes, non-compete.
o Privity of Estate
 Horizontal—Yes, lease with covenant between original parties.
 Vertical Privity—No, because Crest Haven did not transfer entire interest over to DG.
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II. MODIFYING AND TERMINATING COVENANTS
El Di, Inc. v. Town of Bethany Beach, Del 1984, pp. 519
 1900, restrictions placed on Bethany Beach to keep it a quiet beach town – no alcohol or commercial building
allowed. In 1969, El Di purchased Holiday House. Allowed brown bagging. All 5 prongs of test met.
 Consider El Di’s Arguments for not enforcing the covenant (They won)
o Changed Circumstances: Change in character of the community and therefore the purpose of the
covenants. Enforcement will be of no substantial benefit.
 Like this everywhere else in town… and a few yards down there is a liquor store, and then
also restaurants that sell alcohol a few miles away.
 Zoning of area where Holiday House lies as commercial zone C-1
o Relative Hardship: hardship to servient estate is much greater than benefit to owner of dominant
estate. Brown bagging also goes to relative estate too.
 Brown bagging is more destructive Relative hardship—much greater hardship to Holiday
house because they cannot control amount people drink.
o Abandonment: owner tolerated violations of covenant restrictions by others.
o Acquiescence: owner tolerated violations of covenant restrictions by others.
 Also brown bagging was allowed.
 They also tolerated violations of the no commercial use aspect—what is the relation between
letting one covenant be and multiple covenants be violated.
o Prescription: violation for statutory period.
 Counter arguments
o Must be of some benefit to the town since they’re fighting so hard to keep it.
Allemong v. Frendzel (1987)  went the other way. Court said there was no radical change even though there were
lots of liquor outlets within 3 miles and two within a quarter mile.
III. RACIALLY DISCRIMINATORY COVENANTS
Equal Protection Cause
 Some types of public accommodation covered by equal protection
 But what does the constitution require?
 What about an individual’s discriminatory will
Shelley v. Kraemer, SCOTUS 1948
 30/39 owners signed an agreement, providing their property can’t be sold to African Americans or Asians.
 Fitzgeralds sell to Shelleys also African Amercians— Kraemers (own land nearby) sue to deny Shelleys
ownership.
 NO TOUCH AND CONCERN.
 NO HORIZONTAL PRIVITY—agreements between NEIGHBORS are not enforceable. Also the covenant
was not in the original documents.
 Who has standing to enforce covenant for INJUNCTIVE RELIEF as an equitable servitude?
o For injunctive relief we don’t need horizontal or vertical privity—just need to be an intended
beneficiary of the covenant.
o Kraemers could argue that they were an original beneficiary.
 What are the Shelleys’ best constitutional arguments to the trial court opposing enforceability of covenant
for injunctive relief? If the court finds for the Kraemers then THAT will be state action.
o Is there state action here?  Takes state action to enforce covenant.
o On appeal, if the lower court rules against the Shelleys, they can say the lower court action was
state action in violation of the EPC. But if you’re Marshall and you want to make a constitutional
argument to the trial court, is voluntary adherence to a restrictive covenant a violation of the EPC?
o The moment the court gets involved to enforce racially restrictive covenant constitutes state action
in violation of the EPC. EASIER in APPELLATE COURT
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IV. RESTRAINTS ON ALIENATION
Restraints on Alienation- Estates in Land and Future Interests
 Special rules for covenants that restrain alienation of property.
Northwest Real Estate Co. v. Serio, MD 1929, pp. 555
 The developer wanted to have a “high-class” neighborhood and have the right to approve or reject anybody
that owners sell to for 5 years.
 Arguments for covenant
o Only for 5 years
o Large capital outlay and should be allowed to protect interests.
o Security of future buyers— financial interest in making development sustainable
 Arguments for the original grantees and the purported subsequent grantees.
o Fee Simple Absolute Title: Repugnant to fee simple—formalistic argument.
o Efficiency – transfer land to greatest value user.
o Midkiff (Hawaii taxing authority case) only a few people who had fee simple interests Fed. Gov’t
stepped in so that fee simple absolute ownership could be widely dispersed.
Riste v. Esatern Washington Bible Camp, Inc., WA 1980, pp. 556
 Idea is to create a religious community—where the people abide by a particular religion. Riste comes to own
property subject to this restriction. Wants to sell off property contrary to this restriction
 Is there a way in which they could accomplish some or all of their purposes without a restriction on fee
simple?
o Lease? Yes because courts uphold restrictions on leasing/subletting.
 Restrictions based on race, creed (religion?) etc. Not okay per Fair Housing Law. But creed is not
NECESSARILY religion. Fed. Housing Law says creed could be believed to be something other than religion.
Would be hard for the church to disaggregate this.
6. DIVIDING UP OWNERSHIP OVER TIME
Key: O (grantor); A (grantee); B (third party)
FUTURE INTERESTS
 Used to control what is done with and who will own property in the future
 By defining ways to divide up property interests over time
 If restriction imposed, remedy for violation of restrictions: forfeiture of ownership of property.
FEE SIMPLE ABSOLUTE: Right to possess land that extends indefinitely is.
 Begins at present and extends to indefinite future (until sold)
 If of lesser duration than present fee simple absolute, if ends at some time before the indefinite future or
begins at some time after the present.
ESTATES in land are distinguished from each other by TIME OF ENDING.
 When present interest holder dies (to A for life)
 When condition on possession of property is violated (To as so long as X doesn’t happen)
FUTURE INTERESTS are distinguished by time WHEN THEY BEGIN
 When predecessor dies or violates certain condition on land
o To A for life, then to B
o To A so long as X ever happens, if it is, then to B.
 Grantor specifies circumstances under which prop shifts from present interest to future interest holder.
 Circumstances may or may not be under grantee’s control.
o (To A so long as X is used for residential purposes)/(To A for life)
29





Created in grantor or in 3rd p.
o Grants Blackacre to A for life (default: property reverts back to O upon A’s death)
 Present life estate in A
 Future interest (reversion) in O
As with covenants, we have dead hand problems here  if they/covenants reach too far into the future,
restrictions can last for a long, long time = DEAD HAND ISSUE
Goal of property law is to balance relative interest of dead and living
POLICY CONCERNS
o Midkiff (Hawaii) concern: avoid creation of system of concentrated land ownership through
inheritance (landed aristocracy in England)  means no one can actually ever sell the estate. You
can’t get in. Property is all tied up in the bloodline in the old guys— allows for creation of a
patrilineal order. Don’t want to accumulate perpetual wealth in select families.
Regulation of system of estates in land and future interest to:
o Appropriately limit dead hand control
o Leave control of prop more in hands of the living than the dead
o Allow for dispersal of wealth and access property and efficient use property so that decentralized
market system can function.
Terminology:
DEVISING: act of leaving real prop by a will to a beneficiary (the “devisee”)
 If someone dies without leaving a valid will, she dies “INTESTATE,” and property divided among persons
identified in the state intestacy statute
 Those who inherit under the state intestacy statute are heirs. Those who inherit under will are
“devisees.” Disputes often happen b/w heirs and devisees.
Fee Simple Interests:
FEE SIMPLE ABSOLUTE: property ownership WITOUT an associate future interest (goes on forever). Extends into
indefinite future.
o To Create:
 O: “To A”
 O: “To A and her heirs” (preferred but doesn’t matter)
 This DOES NOT grant heirs anything. Just technical. Used to create fee simple
absolute.
 Heirs are whoever will inherit stuff without a will. But you can cut stuff out without a
will. You can identify whomever you want. Heirs only determined at moment of
death so technically it’s “heirs apparent”
 O: “To A in fee simple”
DEFEASIBLE FEES: interests that term when specified event occurs (other than death of current owner). Can
last forever.
 O: to A while used for X purposes
 Associated future interest may be in:
o Grantor (O) or
o Third party (B)
 3 TYPES
o Fee simple determinable
o Fee simple subject to condition subsequent
o Fee simple subject to an executor limitation
 Distinguished by who holds the interest: To A so long as/on condition that prop is used for residential
purposes, then to”. Future interest in grantor with automatic transfer to grantor.
30
PRESENT INTEREST
WORDS USED TO CREATE
FUTURE INTEREST
In Grantor (A)
Fee Simple Absolute
Fee Simple
Determinable
Fee Simple Subject to
Condition Subsequent
Fee Simple Subject to
Executory Limitation
Life Estate
“to A”
“To A and her heirs”
“as long as”
“while”
“during”
“until”
“unless”
“provided that”
“on condition”
“but if”
“until/unless…,
then to…”
“but if…, then to…”
“for life”
In Third Party (B)
Possibility of Reverter
Right of Entry (for
condition broken) or
power of termination
Executory interest
Reversion
Remainder
 Vested
 Contingent
(1) Fee Simple Determinable: O: “to A so long as/while used for residential purposes; if used for nonresidential
purpose, the property shall automatically revert to O”
 Words of duration.
 Possibility of reverter (Future Interest in Grantor)
 Future interest in Grantor with automatic transfer (forfeiture) to grantor— NOT FAVORED.
 Always fill in gaps with future interest in grantor
(2) Fee Simple Subject to a Condition Subsequent: O: To A on condition that property used for resi purposes, in
event it is not so used, O shall have right of entry.
 Similar except you use words of condition, not words of duration.
 Transfer back to grantor (forfeiture) not automatic
 FS subject to condition subsequent
 Right of Entry (FI in Grantor)
(3) Future Interest in Third Party: O: to A so long as used for residential purposes, then to B”
 Only one type: transfer (forfeiture) when event occurs
 Subject to executory limitation
o Executory interest (Future Interest in 3p)
Example: “The covenant is made expressly subject to the following conditions: That no intoxicating liquors shall
ever be sold on the said lot: a breach of which condition shall cause lot to revert and again be property of grantor,
heirs, assigns.” What is this?  Courts don’t favor forfeitures, so probably FSConditionSubs.
LIFE ESTATES
 Can’t last forever. Interest held for life of designated individual. Grantor (O) gets to decide who gets property
after A’s death.
 O: To A for life, then to…
 Future interest after life estate can be either in grantor (O) or in third party (B)
 In Grantor O: Reversion
o O: To A for life, [then back to O]
 In Third Party B: Remainder
o O: To A for life, then to B
o SEVERAL types of remainders Vested and Contingent
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Contingent if they take effect upon happening of event that is contingent, or
Remainder will go to persons who cannot be ascertained at the time of conveyance
 To A for life, then to Hillary Clinton if she is ever elected president.
 To Malia Obama for life, then to the children of Malia.
 Vested if both to persons identifiable at the time of initial conveyance AND no
conditions/contingencies upon taking possession (other than death of life estate holder)
 To A for life, then to Hillary Clinton
Sample Conveyances:
o O: To A for life, then to B and her heirs
 A has: life estate
 B has: remainder (future interest following life estate in third party)



Wood v. Board of County Commissioners of Fremont County (1988 Wyoming)
(Interpreting an ambiguous conveyance)
 Land conveyed by Woods to Fremont County saying....”Fremont County for purpose of constructing and
maintaining thereon a County Hospital in memorial to the gallant men of the Armed Forces of the USA from
Fremont County, Wyoming.” County hospital until 1983, then private hospital until 1984. Woods wants land
back.
 Other means of accomplishing Wood’s Goal  If they had created a covenant, the remedy would be
money damages and they could have secured injunctive relief to prevent from using for any other purposes
except running the hospital.
 Can County alienate? Yes. FSD and FSSTCS  alienable.
o Transferee is the subject to the conditions. X then has to use the land so that it is only used for
hospital purposes.
 Can you convey on condition that never be sold? Restraint on alienationMight be too hostile.
 Fee simple determinable: AUTOMATIC TRANSFER back to the grantor
 Fee simple subject to a condition subsequent: ASSERT RIGHT
 Woods asserts his language created a Defeasible Fee.
FEE SIMPLE DETERMINABLE?
 Look at intent of the grantor:
o Conveyance doesn’t say it expires if not used as a hospital so no evidence of intent to create FSD. The
word memorial also fails to create a fee simple determinable.
o But all of the specifics may evidence intent of grantor.
o Also, Woods is grantor so he can say what his intent is.
 Court says too bad: The language of conveyance fails to designate the time at which the hospital must be
constructed as well as the time during which it must be maintained or during which the indicated memory
must be preserved. You should have used the right language.
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT?
 Gives grantor discretionary power to terminate the grantee’s estate after the happening of a stated
event, not certain to occur.
 Words commonly used FSSCS include “upon express condition that” “upon condition that” “provided that” or
“if,” otherwise you get a fee simple absolute (presumption).
 Forfeiting is disfavored. Conditions that destroy estates not favored in the law.
Hierarchy of Interpretational Preferences Spectrum
Most Preferable  FSA with mere precatory (meaningless) language (Wood)
 FSA with enforceable covenant
 Defeasible fee (may last forever, may be cut short)
o Fee simple subject to condition subs (forfeiture is not automatic)
o Fee simple determinable (forfeiture is automatic)
 Life Estate  Least Preferable
o But see Edwards v. Bradley – life estate preferred if necessary to give effect to testator’s overriding
intent to impose restraint on alienation.
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Edwards v. Bradley (1994)
(Fee Simple versus Life Estate)
 Lilliston (Grandma) makes will and gives (devises) farm to daughter M. Restricts ability to alienate the farm
/ says all gifts to M are conditioned on keeping them unencumbered. If she attempts to encumber or sell
interest, her interest goes to her children. M tries to sell with kid’s consent, Beverly doesn’t agree. Leaves
B $1 in her will. B sues.
 Good children Say:
o They want her to be able to devise it per will so they get more of it. They want her to have a FSA.
o If FSA with a restraint on alienation, we know they are generally invalid (repugnant) if they are
imposed on a fee simple type interest and she would be left with FSA.
o Fee Simple Subject to Executory Limitation. Would mean mom could never sell property. She
never sold it. So at moment of death she died with a FSA.
 Beverly Says:
o M did not have power to devise upon death, it was a life estate.
o She attempted to sell/tried to get them to sign, and broke condition.
o Future interest holders *with executory interest (the kids) when condition broken.
 Court adopts Beverley’s Interpretation:
o Experienced attorney drafting the will and they used the term fee simple all over the place. If he
meant for it to be a fee simple he would have used it.
o As soon as she dies, nothing for creditors to get if she has a life estate. That’s more consistent
with grandma’s intent (Cy Pres Doctrine).
 Hierarchy: Court’s find life estates, as the least preferable b/c there is always a forfeiture involved. But life
estate preferred here b/c it was the only way to give effect to grandma’s intent to impose restriction on
alienation to Margaret.
Charlotte Park and Recreation Commission v. Barringer (1955)
(7 years after Shelley v. Kraemer and racially restrictive covenants)
 Conveyance by the original Barringer to the Commission included a right of re-entry if African Americans
were allowed to use the park.
 Racist Court construed the conveyance as a fee simple determinable, so that no state action was required and
the land would automatically revert to the heirs of Barringer.
 EASIEST FOR THE COURT! NO STATE ACTION. NO EPC IMPLICATION.
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7. DIVIDING UP OWNERSHIP AMONG DIFFERENT PEOPLE CONCURRENTLY
Three Major Types of Co-Ownership of Property
1. Tenancy in Common
2. Joint Tenancy
3. Tenancy in the Entirety
TENANCY IN COMMON
 Each tenant as an undivided interest in and right to possess entire parcel
 TinC can own different fractional interests in property
o Important for things like dividing up costs
 Upon death of a TinC, surviving TinC doesn’t inherit dying tenant’s share (contra JT). No right of
survivorship for other TinC.
 Upon death, TinC can transfer interest in a will or intestate succession
o Example:
 A & B are tenants in common
 In A’s will, she leaves all property to C
 Upon A’s death, C and B are tenants in common (b/c no ROS to B)
 Language to create: default co-ownership like fee simple absolute
o “To A and B [as tenants in common].”
o Default form of co-ownership (except for legally married couples in some states)
o Default: A and B will each take ½ undivided interests in the property
o Can create unequal interests in tenants in common (contra JT)
 “To A and B as tenants in common, with a ¼ undivided interest in A and ¾ undivided interest
in B.”
JOINT TENANCY
 JTs have a right of survivorship.  when one dies, interest is automatically transferred to remaining JTs.
No power to devise property upon her death (compared to life estate).
 Example:
o P & Q joint tenants of Blackacre
o P dies and in her will leaves all property to R (meaningless)
o Upon P’s death, Q owns all of Blackacre
 As a joint tenant, P has no power to devise her property interest in Blackacre to someone else. Think
about this in terms of co-owning property and in what form you’d like to own it.
o Example:
 W, X, and Y are JTs and each have a 1/3 undivided interest in Blackacre
 W dies, devising all of her property to Z
 Who owns Blackacre?
 X and Y each have a ½ undivided interest in Blackacre as joint tenants.
 To Create:
o “To A and B as joint tenants with rights of survivorship.”
 Severance of Joint Tenancy:
o What happens if JT sells her property interest inter-vivos to another party?
o Severs unities of time and title (one of the 4 unities required to create a JT)
 Time
 Title
 Interest
 Possession
o When any of the unities are destroyed, JT is destroyed and property is severed (with respect to that
tenant only). Can also do with a straw person.
 Example:
 A, B, and C are joint tenants in Blackacre
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

o
A wants to sever her part of JT (destroyed JT re: B&C for her share)
A secretly conveys interest to D
o D now has 1/3 interest in Blackacre as Tenant in Common
 B and C are still JTs vis-à-vis each other ONLY (1/3 JTs each)
 What happens upon B’s death? B was in joint tenancy relationship with C
o Upon B’s death, all of B’s interest is transferred to C
o C now owns 2/3 of Blackacre
 C has no one left to be JT with so C and D are Tenants in Common (original
relationship is gone b/c no two people maintaining it)
 If C dies before B:
o Tenants in common – no right of survivorship b/w C and B.
o If C dies, C could leave the property to someone else in a will.
A could always sell to C if she sold to someone else and then bought back (straw person) and would
destroy JT and create TiC and allow her children/grandchildren to inherit and not all go to B.
JT with Indestructible Right of Survivorship
How to create JT but with indestructible right of survivorship (avoid straw man option by one party)
 Life estates with contingent remainders:
o To A and B for their joint lives, with a remainder in A if A survives b and a remainder in B if B
survives A.
Obligations of Co-Owners
 Each one has right to possess entire parcel w/out compensating another (absent “ousting”)
 Ouster – act by which one co-owner wrongfully excludes other from property
o Actual
o Constructive: when realities of situation prevent a co-owner from sharing occupancy.
 Too many kids in the house and can’t sleep
 Restraining order against one party
 What compensation should apply? – Absent ouster no compensation for being out of
possession. But for ouster and constructive ouster, compensation is required.
Olivas v. Olivas (N.M. 1989)
 Sam and Carolina were married and held family home as community property (similar to TbyEnt). 1984: S&C
got divorced. After which held family home as tenants in common. Sam lived elsewhere and C in house. S
wants compensation because of ouster.
 Court concludes he “abandoned” the property (maybe moved in with another woman) and so gets no
compensation.
 What policy do we want?
o General rule: spouse remaining in possession shall pay ½ of reasonable fair market value of
property to spouse out of possession.
o Exception: restraining orders, abandonment
 In some states, courts look at fault.
 In others, they don’t and are precluded from looking at it.
 Tenants in common are required to jointly pay off mortgage, so that would have to be factored into
account.
 Onerous burden on spouse to have to pay spouse rent.
o Courts take fault, need, financial stability, etc. into account.
Remedy of Partition
 If relationship is deteriorating, co-owner can sue for partition (not TbyE while marriage lasts). 6 kids coowned farm in Edwards v. Bradley
o Court ordered property to be physically divided among co-owners
 IF physical division isn’t possible, court may order property sold and divide proceeds
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
Co-owners may also voluntarily agree to partition (voluntary partition)
o Usually a physical division.
o If impossible to divide physically, the court would order to sell and give people proceeds in
proportion to their fractional shares. Joint tenants would each get ½ b/c they have to own equal
fractional interests but TiC can own different fractional shares.
Tehet v. Boswell (Cal. 1976)
 Johnson and Tenhet own house as JTs. Without Tenhet’s knowledge, Johnson goes and leases it to Boswell
for 10 years. Before 10-year term is up, Johnson dies.
 10-year leases severs JT like sale? Creates tenancy in common?
 Arguments for severance of JT in General
o The option to purchase on death should be treated like a sale
o There need to be 4 unities: Unities of time, interest, title, and possession can argue that Johnson
now has a different interest in the property that is reversionary and is different from Tenhet.
o Joint tenancy’s are not preferred tenancies in common are preferred and anything the courts
can use to destroy joint tenancy is used.
 Boswell’s arguments for survival of lease and creation of TiC
o Boswell says it’s unfair to say his lease, entered into in good faith, was terminated by the fact that
the lessor died.
 Court says “too bad” to Boswell. Just like anyone else, lessees face unhappy revelation that lessor’s estate is
less than a fee simple absolute. Lease does not survive death of lessor.
 Court says we have to protect joint tenant (Tenhet’s) right to survivorship.
TENANCY BY THE ENTIRETY
 Form of Co-Ownership similar to JT but available only to married couples (legally).
 Even greater ties binding the parties than JT. LEAST ALIENABLE.
 JT+
o Similar but w/right of survivorship
o TbyE must be legally married (or joined in civil union)
 Not available in all (~1/2 states recognize)
o If recognized, how has it been gender equalized over the years
o Generally, one TbyE’s interest cannot be sold, transferred, or encumbered/made subject to
debts of one individual (e.g. by mortgage) w/out consent of spouse
o Creditors generally cannot attach property to satisfy debt of one spouse – see Sawada v. Endo
o T by E’s right of survivorship cannot be unilaterally destroyed – INDESTRUCTIBLE right of
survivorship (contra JT) – very bound!
o No partitioning while marriage lasts (contra JT)
 Marriage Rights:
o Considered one entity after marriage — husband
o Husband had unilateral power to dispose
 Effect of MWPA on Tenancy by the Entirety
o Not clearly determined.
TbyE Components:
 Held by husband and wife for joint lives
o Remainder in H if H survives W
o Remainder in W if W survives H
 Can contingent remainder/right of survivorship be alienated/attached by?
o Both?
o Neither?
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Sawada v. Endo, HI 1977
 Sawada’s prevailed against the Endo’s for $25K. Endo’s jointly convey house to two sons. Endo husband dies.
The Sawada’s want to be able to go after the Endo house to collect their $25K judgment.
 The court had to consider the question whether the conveyance was fraudulent
o Some conveyances made in order to defraud creditors can be rescinded by the court—
creditor/debtor law.
 Was the property was attachable by (involuntary) creditors of one spouse?
o If yes, then it’s a fraudulent conveyance
o If not then it’s not a fraudulent conveyance.
 What arguments can the Sawadas advance to say that they should be able to go after TbyE property?
 How to take an unequal situation (TbyE pre-MWPA) and render it equal (husband is lord and master under
TbyE property)
o Group 1 states: No change (now violates Equal Protection)
o Group 2 states: Debtor spouse’s interest can be sold/attached for separate debts (life estate +
contingent remainder) subject to other spouse’s contingent remainder/right of survivorship.
 Both parts attachable. Creditors step into shoes of debtor spouse for both parts.
 “To creditors and Ume as life tenants with remainder in creditors if Kokichi survives.”
o Group 4 states: only contingent remainder part is attachable
 To Kokichi and Ume as life tenants, with (contingent) remainder in creditor if Kokichi
survives Ume.
 What are the implications of the creditor stepping into the shoes of the debtor spouse?
Women outlive men – is it gender discriminatory?
 Court Follows: Group 3 states: MAJORITY RULE – including DC, MD, VA – No part of estate may be
subject.
o Unilaterally-indestructible right of survivorship
o One spouse cannot alienate his/her interest in any part of TbyE property (voluntary or
involuntary), and
o A broad immunity from claims of separate creditors of one spouse.
 POLICY:
o Is this fair to creditors of debtor spouse – voluntary vs. involuntary debt?
o We want to protect TbyE. Especially re: homes. This is in HI and there aren’t many fee simple
absolute home interests in Hawaii (around Midkiff)
PROPERTY RIGHTS IN MARRIAGE
1. Separate Property States (East)
 Each spouse owns his or her property separately during marriage
 You own whatever you owned before marriage
 You won what you individually earn during the marriage
 Creditors of one spouse cannot go against the property of the other spouse.
 Upon divorce, property will be divided btw spouses on “equitable distribution” grounds.
 Takes into account spouse’s needs
o Child support
o Lifestyle become accustomed to
o Rehab necessary to get marketable states
o Financial and other nonfinancial contributions made by parties to the other,
o Sometimes fault—1/4 states allow, 1/4 states disallow
 Judge has a lot of discretion
2. Community Property State (West, LA)
 Property owned prior to marriage and gifts + inheritance is separate property.
 All other property—including property earned by either part during marriage—is community property and
is owned equally by both parties.
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


In community property state, my salary is jointly owned during the marriage by me and my spouse.
Upon divorce, some states apply a bright line rule, granting each spouse his/her separate property and half
the community property (including California).
o Responses to bright line rules? Pre-nuptial agreements.
Other community property states apply “equitable distribution” principles for distributing property upon
divorce.
O’Brien v. O’Brien, NY 1985
 What counts as martial property? Michael goes to med school while Loretta earns and then dumps her.
 NY has an equitable distribution statute. “All property acquired by either or both spouses during the
marriage and before the execution of a separation agreement… regardless of the form in which title is held.”
 Issue: Is medical degree/license to practice medicine “marital property” subject to distribution under NY’s
equitable distribution statute?
 Michael’s arguments and alternatives.
o He doesn’t have the money on hand… it’s all conjecture.
o Valuation is too speculative
o A license is not alienable property— the license is his knowledge and can’t get rid of it
o Went to med school in Mexico
o He could want to change his specialty
o Alternative—reimburse her for her services/money, pay her a small percentage for a short period of
time.
 Lower court holding— Loretta 40% of present value of medical license $500K, in annual installments + life
insurance  benefits required.
 Loretta’s side
o He was an investment and she is entitled to that returns on that investment.
o Also even though it’s not common law property—there is a statute on the books in NY that covers
this under “martial property”
o We don’t want the degree to be transferrable—but we just want her portion of the FMV
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8. RIGHTS AND DUTIES OF LANDLORDS AND TENANTS
Old Common Law: treating L/T relationship as conveyance of property for lease term
 Derived from feudal property law
 Assumption as that a lease primarily conveyed to the tenant an interest in land
 L has no ongoing duties during term of lease
 Created term of years in tenant with reversion in L
 Led to implausible results: CL required tenant to pay rent even if any building destroyed on land.
Modern CL: Contracts overtakes Property Laws
Modern paradigm of treating L/T relationship as ongoing contractual relationships (Leases), for provision of
basic necessity – residential housing
 Conflict b/w:
o CL paradigm of treating L/T relationship as conveyance of property for lease term vs.
o Modern paradigm of treating L/T relationship as ongoing contractual relationship
 Compulsory terms in ongoing contractual rel.
o Implied warranties and covenants (don’t have to be listed in terms) vs.
 Implied warranty of habitability
 Implied covenant of enjoyment
o Freedom of contract
Landlord’s Rights
 Right to receive agreed-upon rent for rental term
 Right to have premises returned intact and not damaged
 Reversionary right: to regain possession at end of lease term
 L has reversion following T’s term os years
Landlord’s Remedies for Alleged Tenant Breach
 L can sue for possession – evict tenant and be able to re-rent
 Via ejectment proceeding – long, drawn out
 Via summary process – fast (1 week) judicial determination
Tenant’s Rights and Remedies
 Right to quiet enjoyment of premises
o Express or implied covenant of quiet enjoyment
o Protected via doctrine of actual and constructive eviction
 Requirements for T’s assertion of CE defense? (Nonpayment of rent or possession of
property)
 T has to show they had moved out of part of the premises and put the owner on
notice. Don’t have to abandon entire apartment if it’s just partial constructive
eviction. Abandonment of part is enough. (Minjak)
 Violated when L (or another tenant) substantially interferes with use and enjoyment of
(all or a portion of) the property
 Landlord had power to control the situation and conduct was something that the
landlord could control, if there was something in a contract that said it was not okay,
and if it was a natural and probable consequence that this interference would
occur by renting to this type of tenant.
 Tenant can bring a nuisance action but easier to move out and not pay than to get a
lawyer, etc.
 Right to habitable premises – to premises fit for habitation
o Express or implied warranty of habitability
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I. COVENANT OF QUIET ENJOYMENT AND CONSTRUCTIVE EVICTION
Minjak v. Randolph (1988)
 Randolph and wife were renting apartment from π and using 2/3 for music instrument storage/studio and
the remainder to live. During their time living there: 40 separate leaks from spa above, then sandblasting so
sand everywhere, ruined clothing and other personal belongings. Then landlord (π) started construction on
building and left a gaping hole for 5 flights of stairs as well as dust blasting into their apartment. ∆ could only
use 1/3 of the property, though they stayed in the apartment and retained possession the whole time.
 Landlord is suing in a SUMMARY PROCEEDING allowed landlord to quickly determine rights and maybe
get tenants out, but case begins in 1983 and now 1988
 Trial court awards them 80% rent abatement because they were CONSTRUCTIVELY EVICTED
 TRADITIONALLY constructive eviction could NOT be a defense unless they abandoned the whole
property
 ISSUE: whether, in order to assert defense of constructive eviction, tenant needs to leave the premises
o Here, saying were constructively convicted from 2/3 of the apartment (where all the musical
equipment had to be covered the whole time)
 Landlord’s argument: To claim constructive eviction, the tenants need to fully leave the premises (no
reasonable person could/would say or tolerate living in those circumstances).
 Appellate Holding: Because of PUBLIC POLICY (unfair to require tenant to move out where can be difficult
to find suitable replacement), hold that to successfully assert PARTIAL CONSTRUCTIVE EVICTION, can stay
in possession so long as you are no longer in possession of the part of the premises that you claim to be
constructively evicted from.
Blackett v. Olanoff (MA 1976)
 Group of residential tenants sued by landlord b/c they weren’t paying rent. Landlord had leased part of
property to a lounge. Lounge was incredibly loud and irritated/disturbed tenants. Tenants vacated the
premises and claimed they were constructively evicted. Landlord sues for back rent and tenants claim they
were constructively evicted and thus don’t have to pay.
 What are the possible remedies?
o Could they bring a nuisance action against the lounge to seek injunctive relief?
 Here they wait to be sued for not paying rent and raise constructive eviction.
o NUISANCE = substantial and unreasonable interference with use of land. Why not leave them to
that remedy?
 Can you maintain a nuisance action after moving out? Could probably try to get damages. But
may not have standing anymore.
o Why sue the landlord vs. another entity – nuisance creator?
 VICARIOUS LIABILITY ISSUE: when does the landlord become responsible for actions of
lounge? Is it just to hold landlord liable her?
 Who can be sued? General rule is that you can only impose liability on someone who
MATERIALLY PARTICIPATING in causing the harmful nuisance or who is a “SUBSTANTIAL
FACTOR” in causing the harm.
 Landlord’s Arguments: Landlord will say he’s not responsible for tenants
 Court says: Landlord liable b/c interference was a NATURAL AND PROBABLE CAUSE (prox cause) of the
landlord leasing to these lounge + residential tenants.
 GENERAL RULE: landlord not chargeable, but here – provision in lease expressly provides that
entertainment had to not be heard or disturb residents of leased apartments.
o Rule in NY was that the landlord can’t recover rent if he
 Has ample notice of conduct of one tenant that deprives another of beneficial
enjoyment of premises and
 Does little or nothing to abate the nuisance.
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II. IMPLIED WARRANTY OF HABITABILITY
Hilder v. Peter (VT case – Rutland, nasty house)
Javins v. First National Realty Corp. (1970 D.C.) – Judge Wright
 Violations of DC housing code. ∆s rented apartments from π. Π filed action for back rent because ∆s didn’t
pay April rent BUT ∆s assert defense that they had over 1500 violations of housing code and should be
able to withhold rent.
 According to the LL, the Housing Code is not incorporated into the lease
o Time consuming, difficult, expensive, inefficient
 Tenant’s view: Housing Code Terms incorporated into every lease and terms are standard.
 Holding: WARRANTY OF HABITABILITY IS IMPLIED, D.C. needs to adopt this over the old “no repair” rule.
o Underlying factual assumptions of old CL – used to make sense when land was valued for land
(agrarian) not for buildings. But that makes no sense no. Arguing doctrines are old and N/A now.
 Consumer protection overlay (property law invokes contract law principles)
 Disparity b/w parties.
 Fairness/justice
 Similar to implied warranty of merchantability similar/applicable – justified expectation to
rely on expertise of seller/LL here.
 Fixing problems
 Changes in underlying factual assumptions  people less able to fix the land.
 What can a tenant do to assert right to habitable premises if she believes there is a violation of the
implied warranty of habitability? Suppose you have mice.
o MAJORITY RULE (except, AL, CO, WY) were on the Javins bandwagon has IWoH been adopted
 Some places look to housing codes
 Some look to general community standards of suitability for occupancy and whether
they’ve been violated.
 Remedies available to tenants for violation of IWoH (vary by jurisdiction):
o RECISSION: defense to π’s claim  right to move out before end of lease term. Stops contractual
obligations.
o RENT WITHOLDING: defense to claim for back rent if duty breached and legal right to stop paying
rent or portion thereof.
 If LL tries to evict b/c of this, ∆ can assert the violation of the warranty to prevent eviction
and not pay rent.
o RENT ABATEMENT: pay less based on what you have lost/need to be reimbursed for it – sue for
declaratory judgment – should put in an escrow account so you have the $$ in case you’re forced to
pay later
o REPAIR (yourself, reasonably) and DEDUCT (Compensatory damages)
o Administrative remedies: get housing enforcement people in there
o Criminal penalties: egregious situation (Hilder) where criminal penalties can be imposed on LL
 WAIVABILITY of Implied Warranty of Habitability/Exam Q
o Pro-waiver:
 Freedom of K
 Plenty of options here
 No coercion – not unconscionable
 LLs are going to end up increasing rents if they don’t deal with this
 This was a fair bargain.
 Court shouldn’t have to step in and save them from mistake.
o Anti-waiver
 Tenants are skilled but even though they are ‘jacks of all trade’ they can’t take care of
EVERYTHING.
 Terms are vague
 Anti-public policy – too broad.
 Javins says IWoH can’t be waived!!!
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9. TRADEMARK LAW
I. INTRODUCTION
Trademarks/ Servicemarks (usually re: goods) are symbols, words, phrases, designs, etc. used to identify and
distinguish one’s goods (or services) from those of others.
 Includes sounds, colors, scents, shapes also protectable as TMs.
 Most valuable: Google $44, MS $43B, BOA $31B, Apple $30B, etc.
 TMs symbolize the goodwill associated with the TM owner’s business and protect consumers from
product confusion.
 By using such marks in connection with one’s goods/services in commerce, one can acquire the exclusive
right to do so. Benefits of registering but can get the exclusive right otherwise.
Federal TM Law
 Codified in the Lanham Act Sec. 1125 (IP SUPP pp.7) (False designations of origin, false descriptions, and
dilution forbidden). Enacted using Commerce Clause.
 1125(a) – TM infringement (IP SUPP pp. 7)
o Any person who, on or in connection with any goods or services, uses in commerce any word, term,
name, symbol or decide, or any false designation or origin which
o Is likely to cause confusion or mistake or to deceive as to the affiliation, connection, or association
of such person with another person, or as to the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person
o Shall be liable in a civil action
The more distinctive a mark, the broader the scope of protection under traditional trademark infringement law
 Most Protected - Arbitrary/Fanciful mark – bears no logical relationship to product
o KODAK for cameras, APPLE for computers, Nike
 Suggestive mark – evoke characteristic of underlying good
o COPPERTONE for suntan lotion
 Least Protected - Descriptive mark – directly describes characteristic of underlying product (ALL BRAN,
CABLE NEWS NETWORK)
o Protected only if consuming public primarily associates the mark with the particular producer
 Generic marks – Unprotected by trademark law
o ASPIRIN for painkiller, XEROX for copy (may become generic)
Trademark Dilution (IP SUPP pp. 7)
If a mark is “famous” it is protected against DILUTION under section 1125(c).
 Dilution = lessening of capacity of mark to identify and distinguish goods/services regardless of likelihood
of confusion
 Occurs either through:
o Blurring: use of plaintiff’s mark by ∆ to identify non-competing goods (ie. McSleep for motels)
o Tarnishment: π’s mark weakened through negative or unsavory association with or distortion
of a ∆’s use of mark (ie. CANDYLAND or R-Us in connection with porn AdultsRUs).
 Noncommercial use is also actionable, as are forms of news reporting or commentary.
 Ex. “enjoy cocaine”  Confusion, dilution? Tarnishment?
 Potential defenses? (1125(c)(4))
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II. TRADEMARK INFRINGEMENT ON THE INTERNET
Playboy Enterprises Inc. (PEI) v. Netscape Communications Corporations (2004)
 When you typed in “playboy” “playmate” other list of adult associated words, you would get a number of hits
in Netscape search. On the side, you would get banner ads. Didn’t say who sponsored them. When you
clicked, it would take you through to somewhere other than PB like candyland.com. Here, Netscape has set
up keyword advertising business, 400+ terms on the list including “playboy” and they sell the right to
Candyland to display their ads upon entry of these terms (Candyland cannot pick terms). Playboy sues
Netscape. Playboy is suing for TRADEMARK DILUTION AND INFRINGEMENT.
 What does playboy need to establish DIRECT INFRINGEMENT:
o Need π to OWN THE MARK in question
o Need for ∆ to have used the mark IN COMMERCE /in connection with sale/advertising of
goods/services
o Use needs to be in a manner likely to cause CONFUSION.
 Did Playboy own mark? YES. Did ∆ use the mark in commerce? SEEMS LIKE IT.
 Was there confusion?
o YES  Unlabeled banner ads. So when user types in Playboy and sees ad, before they arrive at the
competitor website, there is potential for confusion. VERY BRIEF – INITIAL INTEREST CONFUSION
OCCURS BETWEEN CLICK AND ARRIVAL AT THE NEW SITE. Strongest argument.
 Brookfield case: Two competing video services. Brookfield has a trademark on “moviebuff” term – West
Coast Ent. wants to use moviebuff as a metatag for its website.
o What does the court say there about trademark infringement there? If the user is perfectly content
with the information they receive but they know they’re at WestCoast and not at MovieBuff’s
entertainment. (Need FINANCIAL GAIN to assert INITIAL INTEREST confusion).
o Are we talking about misappropriation / freeriding or likelihood of confusion?
 Court also goes through the — EIGHT FACTOR TEST to test likelihood of confusion.
1. Strength of Mark
2. Proximity of goods
3. Similarity of Marks
5. Marketing Channels Used
6. Type of goods and degree of
7. ∆’s intent in selecting mark
Consumer Care expected
8. Likelihood of expansion of product lines.
o Court focuses on “ACTUAL CONFUSION”  stat guy Dr. Ford conducted a study and found 51% of
participants, when showed terms like playboy, believed PEI was associated with the unlabeled
banner ads on display. This alone is sufficient to withstand summary judgment.
 Defenses Netscape Asserts Here:
o FAIR USE DEFENSE – fair use can’t be confusing use.
o NOMINATIVE USE DEFENSE – 3 factors— This defense works if you would have to go to absurd
lengths to get around using the terms/TM.
(1) Product or service in question must be one not readily identifiable without use of the
trademark
(2) Only so much of the marks may b used as is reasonably necessary to identify the product
or service
(3) User must do nothing that would suggest sponsorship or endorsement by the trademark.
 i.e. USA Today New Kids on the Block competition
 i.e. playboy sues a playboy playmate for creating her own site.
 FUNCTIONAL USE DEFENSE
o Here, the court says they could have used 400 other terms. Didn’t have to use playboy or playmate.
 How can Netscape revise its search engine/keyword advertising to comply with the requirements of this
court’s opinion.?
o Disclaimer wouldn’t work because the initial confusion occurs before you arrive at the new site.
o Would you need the “sponsored links” box to say the name of the sponsor?
 Depends on how sophisticated the searchers are. Maybe need to say that it’s not affiliated
with Playboy?
 Would you need to just remove those trademarked words from the list?
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PETA vs. Doughney (4th Cir. 2001)
 People Eating Tasty Animals (Dougherty) busy peta.org domain name, with full knowledge of PETA (real). A
resource for those who enjoy eating meat, wearing fur, leather, hunting, fruits of scientific research, etc. Not a
front for the meat industry. Link to “exit” if you’re offended goes to real PETA site.
 Is this a good case for PETA? PETA does parodies of McDonalds (“McCruelty: I’m Hatin It”)  how can you
successfully parody w/out infringing?
 TM Infringement: What must PETA show?
o 5 ELEMENTS TO PROVE INFRINGEMENT
 Possess a mark
 D used the mark
 D’s use of mark occurred “in commerce”
 D used mark “in connection with the sale, offering for sale, distribution or advertising” of
goods or services and
 D used the mark in a manner likely to confuse consumers
 Here, court said use of mark in connection with sales, etc. was significant b/c prevented PETA from using it
as it wished. Just has to prevent them from using the URL.
o 4th Prong: Anything you do THAT INTEREFERES WITH COMMERCE OF TRADEMARK OWNER
counts as satisfying this test. Weak analysis.
o 5th prong: Using in manner likely to cause confusion to consumers  ∆’s argument is likely that once
they look at site content, it’s virtually impossible to be confused as to whether this site is PETA’s
 Court said actual link would contribute to confusion prior to arriving at the actual site.
 PARODY ARGUMENT  To be a non-infringing parody, you have to
(1) Suggest you’re the original and
(2) Show you’re not the original.
Two simultaneous and contradictory messages at the SAME TIME!
o Court says ∆ did not SIMULTAENOUSLY show parody. First confusion (Link name) then you click
then parody. AKA To fix this he has to make clear in his title that he is NOT PETA.
Lamparello v. Falwell (4th Cir.)
 Lamparello upset about religious leader Falwell’s comments about gays and lesbians. Falwell sent cease and
desist letters. Lamparello sued Falwell seeking DJ of non-infringement. Case before 4th cir. again.
 District Ct. granted SJ to Falwell based on PETA decision. Lamparello appeals.
 Falwell must show 5 prongs (above) of TM infringement.
 Court’s analysis
o Can 4th Cir analysis in Lamp be squared with PETA analysis?
 Doughney found likely to caused confusion but Lamparello’s NOT likely to cause confusion.
o Applied test that required looking at domain name AND content of website.
 Said in PETA there was financial interest, here there was none.
 CRITICISM VS. PRODY (Parody has to meet the simultaneity test).
o Criticism w/out parody doesn’t require test. If you were merely criticizing by using mark, you
don’t have to satisfy test. Criticism more likely to not be confusing.
o Parodies subject to more confusion.
 PETA: Parody; Criticism – no commercial gain
 FALWELL: Free Speech/1A/Fair Use?
Can you use someone else’s trademark as part of domain name?
 Need gateway page that says not the original. Use URL that is not JUST the trademark but that includes
something else as well.
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10. COPYRIGHT LAW
I. INTRODUCTION
A form of protection to authors of original works – literary, dramatic, musical, artistic, intellectual works,
regardless of whether or not they’re published
 §102(a) – “Original works of authorship fixed in any tangible medium of expression” (IP SUPP pp. 35)
 Authority to regulate derives from the Intellectual Property Clause of Constitution
 Works of authorship include the following categories:
o (1) Literary; (2) musical; (3) dramatic; (4) choreographic; (5) pictorial, graphic, and sculptural; (6)
motion pictures and other audiovisual; (7) sound recordings; (8) architectural
What’s NOT protected?
 Works not fixed in tangible form of expression, titles/names/short phrases/slogans,
ideas/procedures/methods, works consisting of common information (height/weight chart)
o The Harry Potter book is copyrighted, the idea of wizards, etc. is NOT
How to Acquire Copyrights
 Copyright inheres automatically from the moment a works is “fixed in any tangible medium of expression”
 Rights last from moment of fixation through life of author + 70 years
 Notice and registration are not required but provide certain advantages
Copyright holder’s exclusive rights: (IP SUPP pp. 35)
 §106, Subject to §107, copyright owner enjoys exclusive right to:
o Reproduce, adapt/modify/prepare derivative works, distribute copies, perform work publicly,
display work publicly, perform by means of audio transmission
II. FAIR USE LIMITATIONS TO COPYRIGHT PROTECTION
FAIR USE Limitations (§107) (SCOTUS Established 1st and 4th as most important) (IP SUPP pp. 36)
 Fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching,
scholarship, or research is NOT an infringement
 First Amendment overtones
 In determining whether use is a fair use, consider 4 factors:
(1) Purpose and Character of the use, including whether use is commercial or for nonprofit
educational purposes
(2) Nature of copyrighted work
(3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
(4) Effect of use upon potential market for or value of copyrighted work
The Wind Done Gone
 Randall wrote her book to make a critical commentary on the racism and treatment of African Ams. in
Margaret Mitchell’s GWTW. Used a lot of the same names, situations, etc. Too similar. GWTW was the most
popular book in terms of sales in the US second only to the bible.
 What rights did Margaret Mitchell enjoy once she wrote GWTW. Book is copyrighted.
o Lanham Act/TM Infringement
 Trademark Claims – goods and services sold. Names protected by trademark w/dolls.
 What are exclusive rights? What rights are at issue here with The Wind Done Gone?
o Infringement: SunTrust’s argument is that it established a prima facie case of copyright
infringement. Maybe tarnishment of its reputation?
 PRIME FACIE CASE OF COPYRIGHT INFINGEMENT:
o P owns valid copyright
o D copied original elements of P’s works
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Substantial similarity b/w two works, involving copying of original, protected expression (facts
don’t count)
 Here, in TWDG – Randall appropriates details about the twins having red hair, killed at
Gettysburg, Scarlett throwing a vase at Ashley  not necessary details  takes from
underlying expressive content
Establishing Parody of a Copyrighted Work: (court established that TWDG was a parody)
o For fair use analysis, satire doesn’t require much borrowing but parody does.
o We will treat a work as a parody if its aim is to comment upon or criticize a prior work by
appropriating elements of the original in creating a new artistic as opposed to scholarly or
journalistic work. Because Randall chose to convey criticisms of GWTW through fiction, rather than
a scholarly article, does not in and of itself deprive TWDF of fair-use protection.  Proceed to Fair
Use Test.
FAIR USE FACTORS (1st and 4th most important)
1) Purpose and Character of ∆’s Use
 Fair: transformative use of GWTW, goes in diff direction/purpose is for criticism/character
parody (owner won’t criticize own work), non-profit (NO this was for profit),
 Less Fair: Commercial/substitute. $$. Reliance on original work is significant. Superseding –
free riding on Mitchell’s creativity in GWTW. She could have just written a critique.
2) Nature of Original Work
 Fair: To borrow from factual work
 Less Fair: To borrow from creative work
3) Amount and Substantiality of Portion ∆ Used in re: whole work
 Fair: Less used the better—least amount needed for parody.
 Less Fair: Almost all used, including creative portions.
4) Effect of ∆’s Use On Market for Original
 Fair: harm if any is from genuine criticism. Even if it has a harmful effect on market for
original, copyright law protects it as a fair use to protect genuine criticism and commentary.
Incidental harm is okay.
 Less Fair: harm is from market substitution/supplanting. Put out work that could harm the
market or for authorized, licensed derivatives b/c some are authorized and here it’s
tarnishing/harming market for all of this. In Mitchell’s terms, she prohibits any reference or
mention of homosexuality or miscegenation (interbreeding). If harm is from substitution,
people buy the criticism instead of the original, that’s not a fair use.
o


Campbell v. Acuff-Rose S Ct. 1994 (Pretty Woman)
 Fair Use/Fourth Factor: SCOTUS held that parodies in gen will rarely substitute original work, since two
works will serve different market functions
o Court found no evidence that a potential rap market was harmed in any way by 2 Live Crew’s parodic
rap version of “Pretty Woman” (1964)
o No evidence that Roy Orbison market harmed
o Unlikely any artist would find a parody a lucrative derivative market because artist would never
parody their own works (no confusion)
III. CONTRIBUTORY INFRINGEMENT
Test for CONTRIBUTORY COPYRIGHT INFRINGEMENT - Sony
(1) Direct infringement [by users]
(2) D has actual or constructive knowledge of the infringement
(3) D substantially participated in/contributed to infringement
BUT Sony defense – if technology has commercially significant/substantial non-infringing uses (dual use)
INDUCEMENT LIABILITY (Souter - Intent-based) - Grokster
(1) Defendant distributes a device
(2) With the object of PROMOTING its use to infringe
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(a) CLEAR EXPRESSION or other affirmative steps taken;
(b) To FOSTER infringement
Sony defense is not available when the evidence goes beyond product’s characteristics or the knowledge that
it may be put to infringing uses
Sony v. Universal (1984)
 Sony sells VCRs. Universal alleged that some people used the tape recorders to record their copyrighted
works on TV, infringing on their copyrights. They say Sony’s liable for the marketing of VCRs. They sought
damages and an injunction.
 Can court hold one individual accountable for actions of another
 Traditionally, they for CONTRIBUTORY Copyright INFRINGEMENT need to show:
o (1) Someone is directly infringing; (2) Sony has knowledge of the infringement (actual or
constructive); (3) Sony substantially participated in the infringement
 Court develops SONY DEFENSE to contributory copyright liability – If VCRs are 1) Widely used for
legitimate, unobjectionable purposes, 2) merely CAPABLE of commercially significant/substantial
non-infringing uses, their mere manufacture or sale is not sufficient to constitute contributory infringement
even if the VCRs were used by their owners for infringing uses
o VCR could still legally be used to record non-copyrighted material or material whose owners
consented
o Also “time-shifting” for private home use is non-commercial and non-profit – FAIR USE
 Contributory Infringement adapted from Patent Law
MGM v. Grokster (2005)
 Grokster publish P2P software products that let people copy music from each other. They promote the
downloading of copyrighted music. Lower courts apply find for Grokster.
 ∆ Says No Contributory CR Infringement:
o They don’t have knowledge of infringement because they’re out of the picture (it’s P2P)
o They didn’t substantially participate
o Also, Sony Defense capable of non-infringing uses
 SCOTUS – very different analysis, they look to INDUCEMENT LIABILITY
o “One who distributes a device with the object of PROMOTING its use to infringe—as shown by
CLEAR EXPRESSION or other affirmative steps taken to FOSTER INFRINGEMENT—is liable for
resulting acts of infringement by third parties
o Sony safe harbor won’t save you if you’re encouraging infringement
 Source - Souter looks to Black’s law dictionary – Sony was never meant to ignore fault-based liability
from the common law
 Where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing
uses, and shows statements or actions directed to promoting infringement, Sony will not save D – regardless
of the substantial non-infringing uses
 Can it be squared with Sony?
o Different culpable intent here
 Souter didn’t analyze under contributory negligence theory—instead, adopts an inducement theory
from patent law. Court finds Grokster liable under inducement theory.
 On Remand – MGM’s evidence that Grokster distributed their software with object of promoting
infringement?
o Business model depends on ads which depend on copyright infringement
o Online newsletter links to DL Top 40 hits
o Failure to implement tracking software
o “When the lights went off at Napster, where did the users go”?
 Ginsburg + Breyer Concurrences: Sony doctrine would still apply if there wasn’t without inducement but
what is substantial non-infringing use here? It was 10% in Sony, which may not be correct.
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IV. CIRCUMVENTION OF COPYRIGHT PROTECTION
Self-help measures digital copyright owners have adopted
 Digital tech. to control access and to prohibit copying (Exclusive right to copy, right to exclude other’s to
copy)
o May limit legal playing
o May limit fair use
o Real Property analog
 Right to exclude/trespass
 Right of access free speech, Right of access
 Preventing selling crowbars/lock picking tools.
 Lobby successfully for the passage of additional laws Section 1201
o Laws making it illegal to circumvent access control
o Laws making it illegal to make or sell the technology for circumventing access controls or lobbying
controls.
Copyright Act Section 1201 (IP SUPP pp. 47)
Prohibits circumvention of tech measures used to control access to copyrighted work
UCS v. Corley, 2001
 Release of DVDs in ’97 with CSS to encrypt. Licensing scheme, constraints on design of DVD players.
Extension of monopoly rights (into player technology, past what they did in Sony). DeCSS – unauthorized
player key and decryption algorithm allows user to play and copy movie. Jon Johansen wrote DeCSS and
Corley posted it on hacker blog. Illegal to do this under 1201 – Prison.
 What are the effects of CSS on user’s rights compared to Betamax?
o Can’t create backup copy
o Can’t even make a partial copy. NONE.
 UCS’s claims against Ds
o Relevance of copyright infringement
o UCS sues Corley for violation of 2 anti-trafficking conditions in 1201(a)(2) make illegal to traffic in
tech to control access to copyrighted works or control copying 1201(b)(1)
o Underlying CR Infringement NOT REQUIRED (Unlike Inducement Liability or Contributory Infring.)
 Not an element here and not an element to show circumventing access control. UNIVERSAL JUST NEEDS TO
SHOW CORLEY OFFERED THE PUBLIC SOFTWARE THAT CAN or was DESIGNED to circumvent access
controls/copyright controls.
 Corley Defenses
o Constitutional defenses before 2C and below
 Limited Times Clause Violation of IP Clause— Cannot have Perpetual Control.
 Congress shall have power to promote progress of science and useful arts by securing
for limited times to authors and inventors the exclusive rights to their respective
writings and discoveries (Art. 1 Sec. 8 Cl. 8).
 Also- using same technology for public domain works on DVDs—can’t copy those.
 Other e.g. Public domain books locked up on e-books/readers.
o Code as speech protected by the FIRST AMENDMENT/ FAIR USE
 Does DMCA 1201(a)(2) unconstitutionally limit fair use?
 Is fair use required by the Constitution?
 Making no copies at all may infringe on fair use if you can’t even make them for yourself
 What about commentary in news reporting that is encrypted. Could you be prohibited from
making copies of that?
 Responses:
o Can still point a camera at something and criticize/ Fair use, don’t need the best version to do that!
Court says maybe fair use is required but maybe it’s limited to degraded copies. No right to
make perfect digital fair use copies.
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Impact of DMCA on FAIR USE
 Court is pretty unsympathetic to Corley and says “Fair use never held to be a guarantee of access to
copyrighted material for the person to use the original format”
o No fair use (digital) rights with respect to these DVDs
 Space shifting and shifting to Other Players is an issue, as is printing.
 Recent Case: Russian programmer arrested in the US. Developing software that would take off e-book
encryption in to PDF to read on any device. Charged with violating both provisions on anti-trafficking.
11. PUBLICITY RIGHTS
Personality Rights: (Entertainment Law Issues) Two types of rights—
1. Right of Publicity
 Right to commercially exploit one’s image and likeness/the right to keep one’s image and likeness from
being commercially exploited without permission; Includes photos, gestures, distinctive characteristics,
mannerisms, etc. May be recognized under CL or by statute;
 Unlike other IP issues publicity is exclusively a matter of STATE LAW
o Protection varies widely from state to state
o 28 states recognize right of publicity
 Some don’t recognize post mortem (NY); ½ statutorily recognize post-mortem right; Some
for + 70 (CA); Others for life + 100 years after death
 NY and CA most influential states/jurisdictions regarding rights of publicity
o E.g. Kareem Abdul-Jabbar – sued to prevent Oldsmobile from using “Lew Alcindor” his former name
in sports trivia questions. Kareem prevailed abandonment of name no defense.
 Defenses:
o First amendment/Fair use defenses (This is only for CR but will try to stretch)
2. The Right of Privacy
 Right to be left alone and not have one’s personality/image/likeness represented publically without
permission
 Information privacy
Martin Luther King, Jr. Center for Social Change v. American Heritage Products (GA 1982)
 AHP, ∆marketed and sold a plastic bust of Dr. Martin Luther King, Jr. to be used as a funeral accessory. AHP
asked Center but the Center refused. Center filed for an injunction to stop AHP from manufacturing and
selling the busts, claiming that it violated Dr. King’s right of publicity.
 π Claims:
o Use of Center’s name in ads/marketing— Cause of action? (Portion of proceeds go to MLK center)
o Use of portion of I have a Dream Speech in brochures
o Using his likeness in memorial/must
 Is an individual’s right to publicity SURVIVABLE, INHERITABLE, DIVISIBLE?
o RULE: An individual’s right of publicity survives the individual’s death even if he or she did not
take economic advantage of the right during his or her lifetime.
 Right of Publicity Argument
o Is the right of publicity recognized in GA?
o If so, does it apply to MLK? – He’s not a commercial figure. Wasn’t one during his lifetime.
 Arguments against/for extending to MLK?
 ∆ says not extended b/c he wasn’t commercialized, never made money or exploited
likeness
 π says just b/c he didn’t use doesn’t mean you can prevent his/heirs right—also
exactly why he should be able to maintain an untarnished image.
o COURT SAYS THAT IT DOESN’T MATTER HOW FAMOUS HE WAS – still has right to his own
image.
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




Does right survive death of owner?
o Arguments against survival
 Distinguished from copyright rights lasting +70 years beyond the life. Copyright is
fundamentally commercial/economic vs. personal here. This isn’t economic; it’s about
personal integrity.
 Opposite is that if you know you have a right, you’ll contribute to society more and you’ll
control what you have, know your family will inherit.
o Second Cir. Decided Einstein’s ROP survived death. VERY LITTLE UNIFORMITY.
Copyright Infringement of Speech – fixed tangible medium of expression) MLK can assign/inherit to family
o Published brochure and inserted 80,000 copies in newspapers.
o Fair Use Defense :
 “Heart of the work taken here” Counter: Everybody knows the speech.
 Commercial use. Can use but not to sell.
 No potential market for the copyright work for the center? Never intended to be a
commercial marketable work, just inspirational, etc. No commercial market for this so it’s not
hurting the market.
Trademark – Associated with an organization
o Lanham Act: Sec. 1125 – “uses in commerce ...false or misleading representation of fact, which is
likely to cause confusion…”  Likely to cause confusion – looks like it’s endorsed by Center—BUT
they are donating 3% to the center— Center refuses money.
Holding: District court found infringement.
o An individual’s right to publicity is inheritable and devisable even if the individual did not
commercially exploit that right during his lifetime. If this were not the case, it would severely restrict
the economic value of the right of publicity.
 Doesn’t matter if you were an entertainer, public figure, or other person.
o Further, there are many reasons why an individual may not want to take economic advantage of
his name and likeness during his lifetime and simply because that option is not appealing to the
individual does not mean that others should have the right upon his death.
 In this case, Dr. King did not economically exploit his name and likeness during his lifetime,
but his heirs are still afforded this right. Along those lines, AHP has no such right in Dr.
King’s publicity so its manufacture and sale of the busts are in violation of Dr. King’s right of
publicity.
Concurrence: Judge: The right of publicity as established by the majority jeopardizes the freedom of speech.
This case should be decided on the basis of the doctrine of unjust enrichment, determining whether the
community thinks the conduct of AHP is unconscionable.
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