1) Exclusive Possession
a) The Right to Exclude Others, pp 1-38
i) Overview
(1) The private landowner’s right to exclude others from his or her land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property. ii) Policy in favor of private property
(1) Things held in common are usually neglected
(2) There is a fundamental property right that goes beyond monetary damages iii) Property Rights are not Absolute
(1) Apply a balancing test of property and societal interest
(a) One may trespass to put out a fire
(2) Property rights are diminished when others are invited onto land
(3) The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumcised by the statutory and constitutional rights of those who use it.
(4) If property is open to the general public then the First Amendment supercedes property rights on it.
(a) These protections are available against unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation no to abridge the individual exercise of such freedoms because of public use of their property.
(b) The NJ court said that the right of free speech conferred by the state constitution was secure not only from State interference but – under certain conditions – from the interference of an owner of private property even when exercised on that private property.
(i) Schmid Standard
1. The normal use of the property
2. The extent and nature of the public’s invitation to use it
3. The purpose of the expressional activity in relation to both its private and public use
(5) Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their wellbeing must remain the paramount concern of a system of law.
(6) Example: NJ v. Shack 1971 p24
(a) A couple guys with govt and non-profit agencies who wanted to help migrant workers went to a farm where migrants lived in order to offer aid to the migrants. The landowner did not allow them entrance and then said they could only meet with the migrants if he was present. The guys refused and the owner had them arrested for trespassing.
(b) The farmer cannot deny his workers access to government aid; Migrant workers must be able to receive visitors in his living quarters iv) Trespass to Real Property
(1) The action for intentional trespass to land is directed at vindication of the legal right.
(2) The law infers some damage from every direct entry upon the land of another
(3) The law recognizes actual harm in ever trespass to land whether or not compensatory damages are awarded
(4) Relief
(a) When nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury is awarded.
(i) Excessiveness of punitive damages determined by:
1. The degree of reprehensibility of the conduct
2. The disparity between the harm or potential harm suffered by the plaintiff and the punitive damage award
3. The difference between this remedy and the civil or criminal penalties authorized or imposed in comparable cases
v) Trespass to Chattels
(1) Trespass to chattels lies where an intentional interference with the possession of personal property has proximately caused injury
(2) One who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interesting the physical condition, quality or value of the chattel for a substantial time, or some other legally protected interest is invaded
(3) The dignitary interest in the inviolability of chattels, unlike that as to land, is not sufficiently important to require any greater defense that the privilege of using reasonable force when necessary to protect them. Accordingly it has been held that nominal damages will not be awarded, and that in the absence of any actual damage the action will not lie.
(4) Relief:
(a) In order to obtain injunctive relief P’s actions must cause irreparable injuries that cannot be compensated with damages
2) Landlord-Tenant
a) The right of exclusive physical possession 39-56
i) Lease or License
(a) Lease: a legal interest that entitles the tenant to immediate possession of designated land, for either a fixed period of time or for so long as the tenant and the landlord desire.
(b) License: personal, revocable and unassignable permission to do one or more acts on the land of another without possessing any interest therein.
(i) e.g., as a spectator at a football game
(2) Does language look like lease or license
(a) Drafting party is held to higher standard
(3) Formal Language
(a) What is the document called
(4) Control Over Space
(a) A lease specifies the exact space rented
(i) A lease must include a definite description of the property leased and an agreement for rental to be paid at particular times during a specified term
1. When one goes into possession of a premises under a contract containing an ambiguous or uncertain description of property to be occupied and pays the stipulated rent, it will be enforced as a lease if the parties acted upon it as relating to particular premises
(ii) A lease is a conveyance and a contract,
(iii) Lease transfers right of possession under some conditions
1. It is a temporary posessery interest
(5) Intent of the parties (conduct)
(a) If both parties accept an undefined space than it is still a contract when they choose to occupy a space
(b) No particular terminology is required to make a lease but it is essential there is intent to create a landlord-tenant relationship
(6) Transferability
(a) Licenses are never transferable
(b) Leases can either be transferable or not
(7) Termination
(a) No reason needed to terminate a license
(i) Damages may only be awarded for reliance interests
(b) There are much fewer rights transferred in a license than in a lease ii) Interfering with Actual Physical Possession and Quiet Enjoyment
(1) Delivery of Physical Possession
(a) The mere act of signing the lease the landlord impliedly promises that she is granting the right to physical possession of the leased property
(b) Majority Rule: Landlord is obligated to furnish actual physical possession to the tenant and remove any holdover tenants
(i) Policy: Courts like to place the burden on the party that is best able to handle it
1. Landlord is better suited to evict people than the new tenant is
(c) Minority: Tenant has the responsibility of clearing the property of squatters
(2) Partial Actual Eviction:
(a) Partial actual eviction (PAE) – Where the landlord actually reclaims part of the leased property. If the landlord occupies even a very small part of the leased property, it may give rise to PAE.
(i) Partial Actual Eviction: Occurs when the landlord deprives the tenant of physical possession of some portion of the leased property, including denial of access to the leased premises.
(ii) Brought by tenant as defense after being sued for not paying rent
(b) Modern minority rule: Rest. §6.1 if there is actual partial eviction tenant may withhold a portion of the rent based on the amount and importance of the land encroached
(i) Problem with determining the appropriate amount
(ii) Tenant usually has to bring the case and bare the burden of proof
(c) Majority of States: Rent is charged for every part of the land thus the landlord must give access to the whole land rented, If there is actual partial eviction tenant may withhold 100% of the rent
(d) The wrongful eviction of the tenant by the landlord from a part of the premises suspends the rent under the lease
(e) Rent is suspended if the tenant is evicted from any portion of the land.
(3) Constructive Eviction
(a) When the tenant’s possession is disturbed by the landlord, and as a result, the premises become unfit for habitation, in whole or substantial part, the tenant may vacate after giving the landlord notice of the disturbance and a reasonable opportunity to cure.
(b) Nearly an actual eviction, level of interference as high as if evicted
(c) Occurs when the landlord so deprives the tenant of the beneficial uses or enjoyment of the property that the action is tantamount to depriving the tenant of physical possession.
(d) Interferences by the landlord that fall short of a physical exclusion but that nevertheless substantially interfere with the tenant’s enjoyment of the premises, causing the tenant to vacate, are action by the tenant as constructive evictions.
(e) The focus in a constructive eviction case is on the extent of the interference rather than the intent
(i) Policy: It takes a big breach to void a lease
(ii) Most jurisdiction require that you actually moved out to claim constructive eviction
(4) Breach of Covenant of Quiet Enjoyment:
(a) Covenant of quiet enjoyment (CQE) – The promise that neither the landlord nor anyone else will interfere with the tenant’s lawful possession. A landlord can breach the CQE by someone other than the landlord exerting superior title, or by the landlord’s actual or constructive eviction of the tenant.
(b) Always applied in any agreement (i.e. commercial, residential, written, or oral)
(c) Occurs when the landlord substantially interferes with the tenants beneficial use or enjoyment of the premises
(i) Law implies a covenant of quiet enjoyment which obligates the landlord to refrain from interference with the tenant’s possession during the tenancy.
(5) Remedies
(a) Constructive Eviction: Termination of Lease
(b) Covenant of Quiet Enjoyment: Damages
b) Implied Landlord’s Duties and Implied Conditions to Tenant’s Obligations, pp. 57-82
i) Landlord’s Duties
(1) To provide the tenant with the legal right to possession
(2) Not to interfere with the tenants physical possession
(3) To make the possession actually available to the tenant (most jurisdictions)
(4) To comply with express covenants made in the lease ii) Implied Warranties
(1) Reciprocal Duties
(a) Modern Rule: Tenants duty to pay rent is contingent on landlord fulfilling his duty for upkeep
(b) Rent is an ongoing duty thus maintenance is an ongoing duty
(c) A landlord has notice of alleged uninhabitable conditions not caused by the tenants themselves, a landlord’s breach of the implied warranty of habitability exists whether or not he has had a reasonable time to repair
(2) Creation of Warranties
(a) Ct tries to impose warranties that they believe the parties would have made had the issue come up
(b) Ct looks to custom and statute in the area when imposing a warranty
(3) Implied Warranty of Habitability/ Suitability
(a) In the 1970s, courts began to recognize a new tool in the fight against substandard rental housing: the implied warranty of habitability. Under this doctrine, each residential lease is deemed to contain an implied warranty that the landlord will deliver the premises in habitable condition and maintain them in that condition during the lease term.
(b) 3 elements to a successful IWH claim:
(i) The landlord must have notice of the defective condition.
(ii) The defect must be substantial, considering its violation of the housing code, its effect on the tenant’s health or safety, the length of time it has existed, and its seriousness.
(iii) The landlord must have been given a reasonable time to repair the defect and not done so.
(c) There is an implied warranty of suitability by the landlord in a commercial lease that the premises are suitable for their intended commercial purpose.
(i) This warranty means that at the inception of the lease that there are no latent defects in the facilities that are vital to the use of the premises and that everything will remain in usable condition.
(d) Policy for implied warranty by landlord: landlord knows the property and building code better than the tenant does so he is in a better position to discover problems with the property
(e) It is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty construction or deterioration by normal use.
(f) It is a covenant that these facilities will remain in usable condition during the term of the lease.
(g) Exceptions
(i) Warranty of habitability does not require the landlord to maintain the premises in perfect condition at all times, nor does it preclude minor housing code violations and landlord is not liable for problems caused by tenant.
(ii) The warranty of habitability requires that the landlord maintain “bare living requirements”
(h) In performance of this covenant the landlord is required to maintain those facilities in a condition which renders the property livable.
(i) Where damage has been caused by abnormal use and such the tenant is liable for repair
(ii) Tenant only has the recourse of self-help after notifying the landlord of the repair need
(4) Remedies
(a) In general, the tenant must notify the landlord of the defect and allow a reasonable time for repairs to be completed. If the landlord fails to act, the tenant may remain in possession and also: (1) withhold rent; (2) sue for damages; or, in some jurisdictions, (3) repair the defects and deduct the cost from rent due the landlord. Alternatively, the tenant may terminate the lease and sue for damages.
(b) Tenant must give landlord notice and time to make the repair before withholding the rent
(c) Courts apply contract damages for breach of warranty of habitability
(d) Special damages may be recovered when, as a foreseeable result of landlord’s breach, the tenant suffers personal injury, property damage, relocation expenses, or other similar injuries.
(e) Tenant may seek “difference money”
(i) Fair rental value – fair value in unrepaired condition
(ii) Contract rent – fair value in unrepaired condition
(iii) Percent of contract rent that tenant’s use and enjoyment has been reduced by uninhabitable conditions (very popular way, no experts necessary).
(f) Percentage Diminution: How much does the problem reduce the value of the property? iii) Types of Tenancy
(1) Term of Years Tenancy
(a) The term of years tenancy endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance. This tenancy automatically expires when the agreed period ends, without any notice of termination.
(b) A tenancy that is for any fixed/computable period of time
(c) Created by express agreement
(d) Terminated automatically at end of set period of time
(2) Periodic Tenancy
(a) The periodic tenancy lasts for an initial fixed period (e.g., one month) and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice. The classic example is the “month-to-month” residential lease.
(b) Continues for successive periods until terminated, it is automatically renewed
(c) May be created by express agreement
(d) Termination requires notice, common law requires 6 month notice, Rest: one month’s notice for periodic tenancies of month-to-month or more
(3) Tenancy at Will
(a) The tenancy at will has no fixed duration and endures only so long as both the landlord and the tenant desire. Today most tenancies at will arise from implication, not from an express agreement.
(b) No designated period other than will of both parties
(c) Usually inferred rather than expressly created
(d) Terminates at will of either party, no particular notice is required
(4) Tenancy at Sufferance
(a) The tenancy at sufferance arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends. Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the “tenant” at any time.
(b) Results when tenant originally in rightful possession under a valid lease holds over after his lease expires
c) Landlord’s Tort Liability for Personal Injuries, pp. 83-105
i) Implied Warranty of Habitability: Modern Rule: Rest. Property 17.6
(1) A landlord is subject to liability for physical harm caused to the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of
(a) An implied warranty of habitability
(b) A duty created by statute or administrative regulation ii) Tort Rule
(1) Standard of care imposed on landlords is “reasonable care under the circumstances”
(2) If landlord does not behave reasonably than tort liability may be imposed
(a) Merrill v. Jansma WY 2004 p87
(i) Merrill was visiting her daughter and fell because step broke. Landlord had unsuccessfully tried to fix the step earlier
(ii) Residential Rental Property Act: Landlord has a duty to maintain the unit in safe and sanitary condition fit for habitation
(iii) Landlord did not behave reasonably so he was liable iii) Strict Liability
(1) Reasons for no strict liability for landlords
(a) Landlords are not in stream of commerce (they do not have an ongoing relationship with manufacturer
(b) Loss Spreading, landlord is not in a good position to spread the loss of a defective product, they have no redress against the manufacturer as a retailer would, the cost is ultimately spread to the public by a landlord
(c) Implied representation of safety, tenant does not expect anything beyond a normal inspection iv) IWH & Tort Negligence
(1) Foreseeability creates the duty
(a) It does not matter if landlord knows the specific risk or not for him to be liable (strict liability)
(b) A landlord could be held liable for creating an unreasonably enhanced risk of loss resulting from foreseeable conduct.
(c) The landlord’s implied warranty of habitability obliges him to furnish reasonable safeguards to protect tenants from foreseeable criminal activity on the premises
(2) Trentacost v. Brussel 1980 NJ p98
(a) Woman was assaulted in the stairway of her apartment. There was no lock on the front door and there has been crime in the area
(b) By failing to do anything to arrest or even reduce the risk of criminal harm to his tenants, the landlord effectively and unreasonably enhanced that risk
(c) Foreseeability of harm, not the fact of another’s intervention, is the crucial factor in determining whether a duty exists to take measures to guard against criminal activity
(d) Under modern living conditions, an apartment is clearly not habitable unless it provides a reasonable measure of security form the risk of criminal intrusion
(e) By failing to provide adequate security the landlord impaired the habitability of the tenant’s apartment.
d) Landlord’s Motives in Selection or Removing Tenants, pp. 107-128
i) Fair Housing
(1) Act prohibits discrimination based on race, color, religion, sex, familial status, or national origin.” It is also unlawful to discriminate b/c of a tenant’s physical or mental handicap in the sale or rental of housing by:
(a) Refusing to rent
(b) Offering discriminatory terms, conditions, or privileges
(c) Any notice or ad that indicates racial preference
(d) Representing to any person that any dwelling is not available when it actually is
(2) Exception for landlords if he is offering to lease a unit in a building of four units or less or unit of which he occupies
(a) Reasoning: Stakes are higher, it is not just economic when landlord lives there ii) Retaliatory evictions are not acceptable, tenants rights are greater in future leases iii) Absent a supervening statutory proscription, a landlord is free to do what he wishes with his property, and to rent or not to rent to any given person at his whim.
(1) Marina Point v. Wolfson 1982 CA p110
(a) Married couple moved into apt (large complex) and did not have any kids. Lease stated landlord must approve of minors living there. Marina point changed its policy to say no kids at all but did not evict people just applied it to new tenants. Wolfson’s had a kid and their lease expired and the landlord asked them to leave because he thought kids were noisy and costly. However, Adam had never been noisy or costly.
(b) Unruh Act prohibits discrimination based on arbitrary reasons such as race or religion. It is intended to prohibit all arbitrary discrimination by business establishments
(c) Under the act an individual who has committed not such misconduct cannot be excluded because he falls within a class of people whom the owner believes is more likely to engage in misconduct than some other group.
(d) Discrimination must be arbitrary (unprincipled) to violate Act
(e) Wolfsons were able to stay with their kid
e) Assignments and Subleases, pp 129-152
i) Overview
(1) Most modern leases restrict the tenant’s right to transfer all or part of the leasehold interest. However, the landlord is typically able to transfer his interest freely.
(2) Most states use an objective test in distinguishing between an assignment and a sublease. If a tenant transfers the right of possession for the entire remaining term of the lease, the transfer is an assignment. However, if only part of the remaining term is transferred, a sublease arises. ii) Distinguishing Between Assignment and Sublease
(1) Most states use an objective test in distinguishing between an assignment and a sublease. If a tenant transfers the right of possession for the entire remaining term of the lease, the transfer is an assignment. However, if only part of the remaining term is transferred, a sublease arises.
(2) The intention of the parties is to govern in determining whether an instrument is an assignment or a sublease, although the duration of the primary term, as compared with the duration of the transfer, may be consider in arriving at that intention iii) Assignment
(1) An assignment creates a triangle of relationships among the original lessor, the original lessee who transfers her right (the assignor), and the person who receives the right (the assignee).
(a) Privity of contract continues between the lessor and the assignor; privity of contract is created between the assignor and the assignee; and privity of estate arises as a matter of law between the lessor and the assignee.
(2) The assignor remains liable to the original lessor for all covenants in the original lease, because they remain in privity of contract, absent a novation. The privity of estate between the lessor and assignee requires both of them to perform those covenants in the original lease that “run with the land,” and, as a practical matter, most lease covenants do so run. For example, suppose that A leases to B who assigns to C. If no one pays rent to A, both B and C are liable.
(3) An assignment cannot destroy privity of contract unless it expressly says so
(a) A D Juilliard & Co. v. American Woolen Co. RI 1943 p130
(i) P’s first contention is that the assignee of a lease of real property, as here, is liable for the payment of the stipulated rent for the entire unexpired term, notwithstanding that the assignee did not agree to assume such obligation and assigned the lease before the expiration of the term. (Minority rule)
(ii) P’s 1st Contention: The assignor is liable for payment of rent for the entire term even if the assignee did not agree to assume such obligation and assigned the lease before the expiration of the term
(iii) The courts in this country have consistently held that, in the absence of the assumption by the assignee of the obligations of the lease, the liability of such assignee to the lessor rests in privity of estate which is terminated by a new assignment of the lease made by the assignee. (Majority rule)
(iv) Liability to pay rent is determined by the contract of assignment
(v) In leases, the lessee being a party to the original contract, continues always liable, notwithstanding any assignment; the assignee is only liable in respect of his possession of the thing. He bears the burden while he enjoys the benefit, and no longer”
(vi) Unless fraudulent or colorable, a new assignment of the lease terminates the assignee’s liability to the lessor for rent subsequently accruing.
(vii) If such assignee, by a new assignment, fairly relinquishes not only possession of the leased premises but also all benefits therefrom, it is immaterial that the new assignee may be financially irresponsible, or that he gave no consideration, or even that he received a bonus as an inducement to accept the assignment of the lease. iv) Sublease
(1) A sublease creates a new landlord-tenant relationship. Suppose A leases to B, and B (as sublessor) leases to C (as sublessee). Privity of contract and privity of estate remain between A and B; privity of contract and privity of estate arise between B and C.
(2) The sublessor remains liable to the original lessor for all covenants in the original lease. Similarly, the sublessee is liable to the sublessor for the covenants in the sublease. However, the sublessee has no obligations to the original lessor.
(3) In a sublease, the relationship between the original lessee and the subleasee is that of landlord and tenant, and the subleasee incurs no liability directly to the original lessor for payment of rent. An assignee acquires privity of estate with the original landlord and enters into a landlord-tenant relationship with the original tenant
(4) No privity of estate with landlord or sub landlord only privity of contract
v) Tenant’s Right to Assign or Sublease
(1) Overview
(a) Tenants are free to assign or sublease their interests in theory, absent a contrary agreement. However, the vast majority of leases expressly restrict this freedom. Some lease clauses flatly prohibit transfer; others give the lessor the sole discretion to approve or deny a transfer; still others require the lessor to act reasonably in deciding whether to consent.
(b) Complexity arises when the lease requires landlord consent but is silent on the standard for granting consent. The traditional approach applies the sole discretion standard in this situation. However, the modern trend is to require that the landlord act reasonably in deciding whether to grant or deny consent.
(2) Restatement (Second) of Property § 15.2(2)
(a) A restraint on alienation without the consent of the landlord of the tenant’s interest in the leased property is valid, but the landlord’s consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent.
(3) A lessor may withhold consent only when the lessor has a good faith reasonable objection to assignment of the lease, even in the absence of a lease provision stating that the lessor’s consent will not be unreasonably withheld.
(a) Policy: Right of alienation is part of the bundle of sticks usually transferred in a lease
(4) Factors considered in determining whether a lessor has acted reasonably and in good faith in withholding consent to an assignment or subletting of a commercial lease includes:
(a) Financial responsibility of proposed assignee or sublessee;
(b) Assignee’s or sublessee’s suitability for the particular property;
(c) Legality of the proposed use;
(d) Need for alteration of the premises; and nature of the occupancy.
(5) Minority Rule (New York):
(a) Under NY law, where a lease requires a tenant to obtain the prior written notice of the LL to sublet or assign eased premises, a landlord may refuse consent arbitrarily, unless the lease contains a clause specifically stated that the landlord may not unreasonably withhold consent
f) Tenant’s Breach: Landlord’s Remedies, pp 153-172
i) Surrender and Acceptance Doctrine
(1) When a tenant surrenders the premises to a landlord before a lease term expires and the landlord accepts that surrender, the tenant is no longer in privity of estate with the landlord and therefore has no obligation to pay any rents accruing after the date of the acceptance
(2) At common law the question is whether the landlord intended to accept the surrender ii) Abandonment
(1) An abandonment occurs when the tenant
(a) Vacates the premises without justification,
(b) Lacks the present intent to return, and
(c) Defaults in the payment of rent. iii) Duty to Mitigate Damages
(1) Traditional rule is that landlords have no duty to mitigate damages
(2) Today, however, most jurisdictions require that the landlord either mitigate damages or terminate the lease.
(3) Mitigating conduct should not be used as proof of surrender
(4) A LL who seeks to hold a breaching tenant liable for unpaid rents has an obligation to take commercially reasonable steps to mitigate its losses, which ordinarily means that the LL must seek to relet the premises
(5) A landlord is required to take such steps as would be expected of a reasonable LL letting out a similar property in the same market conditions
(6) When the mitigator breaches the original tenant is on the hook
(7) The original tenant is on the hook if LL is unable to mitigate damages
(8) Once the tenant defaults, the landlord has a duty to make a good faith effort, expending reasonable effort and diligence, to relet the property. The burden is upon the tenant to establish a lack of good faith by the landlord; in the absence of such a showing, it will be presumed that the landlord acted in good faith. iv) Amount of Damages
(1) The general rule is that a party who is injured by breach of contract is entitled to compensation for the injury sustained and is entitled to be placed, as near as this can be done in money, in the same position he would have occupied if the contract had been performed. Stated generally, the measure of damages for the breach of a contract is the amount which would have been received if the contract had been performed as made, which means the value of the contract, including the profits and advantages which are its direct results and fruits.
(2) When the tenant abandons the leased premises and fails to pay rent, the landlord can recover only those damages which he could not with reasonable diligence avoid by reletting the premises.
(3) If the landlord fails to use such reasonable diligence, his recovery as against the tenant will be limited to the difference between what he would have received had the lease agreement been performed, and the fair market value of what he could have received had he used reasonable diligence to mitigate.
(4) If the landlord does mitigate by reletting, his recovery will consist of what he would have received had the lease been performed, less the net value of what he did receive from reletting during the relevant contract period.
v) Anticipatory Breach
(1) Includes accrued rents and future rent due under the lease reduced to present value (reverse interest) vi) Retained Jurisdiction
(1) The court may retain jurisdiction to award damages before the lease term is complete
(2) Ct retains jurisdiction over the case until the end of the lease term and LL can get damages periodically without have to prove it again
(3) The court may enter new damage awards as additional rents accrue
3) Conveyances
a) Life Estates and Associated Future Interests:
i) The life estate is a freehold estate whose duration is measured by the lives of one or more specified persons. For example, a grant “to A for A’s life” creates a life estate in A for as long as he lives. Alternatively, the duration may be measured by the life of a person other than the grantee (e.g., “to A for B’s life”); this is called a life estate pur autre vie.
(1) Life Tenant: Has possession so long as he or whoever is stipulated is alive
(2) Remainderman: Is missing the stick of present possession ii) The Doctrine of Waste, pp. 233-249
(1) Waste must be an act resulting in permanent injury to the inheritance or future estate
(2) Under all ordinary circumstances the landlord or remainderman, even in the absence of any contract, is entitled to receive the property at the close of the tenancy substantially in the condition in which it was when the tenant received it; but when there has occurred a complete and permanent change of surrounding conditions, which has deprived the property of its value and usefulness as previously used, the question whether a life tenant has been guilty of waste in making changes necessary to make the property useful, is a question of fact for the jury under proper instructions
(3) Waste is cause of action
(a) Waste may be defined to be any act or omission of duty by a tenant of land which does a lasting injury to the freehold, tends to the permanent loss of the owner of the fee, or to destroy or lessen the value of the inheritance, or to destroy the identity of the property, or impair the evidence of title.”
(b) A life tenant is bound to keep the land and the structures comprising the estate “ ‘in as good repair as they were when he took them, not excepting ordinary or natural wear and tear....’ ”
(c) Types of Waste
(i) Permissive: Not maintaining the property (nonfeasance)
(ii) Commissive: Destroying the property (misfeasance)
(iii) Ameliorating: Increases value of estate, goes strictly to the character of the estate
(4) Remainderman should come into both the character and value of the estate they were promised
(5) Property must always be in good condition because there is no set transfer time (based on time of death)
(6) Life tenant has an ongoing maintenance duty
(7) Insurance
(a) If LT takes out insurance to cover their interest of the property and the insurance pays off, the LT gets to keep the proceeds.
(b) If it covers everything, then it may go to the remainderman as well. However, LT will have a life interest in the insurance. This means that the LT cannot spend that money, but they can invest it and collect the interest.
(8) Damages
(a) Damages are given to the property
(b) Life tenant is obligated to make repairs
(i) There may be an injunction to force the life tenant to compel the performance of such duties
(c) Statute of Limitations
(i) Commissive waste statute of limitations begins to run at time of act
1. Difficult not to see commissive waste
(ii) Permissive waste statute of limitations begins at death of life tenant
1. Policy; It is easy to miss permissive waste, cannot be assessed until remainderman has possession iii) Surrender
(1) Surrender as defined by the law of estates “A yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder”
(2) No surrender usually when the property is leased because there is a right of reentry
(a) General Rule: Life tenants may rent property however grantor may expressly contract against it
(3) Occupancy: Intent to remain or intent to return is key to determine occupancy
(a) It is not a breach of occupancy to go on a long vacation if you intent to return
(b) Return must be realistically possible based on both maintenance of property and other circumstances iv) Remainder Interests
(1) Vested Remainder Interest
(a) Remainder man has present rights (only one remainder person)
(i) This is important for standing
(2) Contingent Remainder Interest
(a) When not sure who Remainderman is
(i) Class gift: such as remainder to “grandchildren” (may be unborn)
(ii) Ct will appoint a guardian to represent the unidentified remainder people
b) Concurrent Estates:
i) Overview
(1) A present estate in real or personal property can be simultaneously owned by two or more persons, each holding the right to concurrent possession. Such an estate is called a concurrent estate.
(2) There are three basic types of concurrent estates: tenancy in common, joint tenancy, and tenancy by the entirety. ii) Creation, pp. 271-288
(1) Tenancy in Common
(a) In a tenancy in common, each co-owner holds an undivided fractional share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel. Today any devise to two or more unmarried persons is presumed to create a tenancy in common (e.g., “to A and B”). A tenancy in common interest is freely transferable during the holder’s lifetime and at death.
(b) Conveyance or devise to two or more persons, not husband or wife or trustees, carries with it no right of survivorship unless clearly expressed and thus, unless terms of agreement expressly or by necessary implication call for a joint tenancy, a tenancy in common will be presumed.
(c) A conveyance to three parties two of whom are husband and wife but neither designated as such, shall, in the absence of any language in the conveyance disclosing a contrary intention, be deemed a conveyance of one-third shares.
(2) Joint Tenancy (JTWROS)
(a) The joint tenancy differs from the tenancy in common in that a joint tenant has a right of survivorship. If O conveys land “to A and B as joint tenants, with right of survivorship,” and A dies first, then B holds fee simple absolute. English common law required four unities to create and continue a joint tenancy. The joint tenants had to acquire title at the same time; they had to acquire title by the same deed or will; each interest had to be identical in size; and each tenant had to have an equal right to possession. Today some states have eroded these requirements. A joint tenancy interest is inalienable.
(b) Word “jointly” is not sufficient to create the right of survivorship in absence of words of survival and does not, of itself, create a joint tenancy
(3) Tenancy in the Entirety
(a) The tenancy by the entirety—now abolished in many states—can only be created in a husband and wife (e.g., “to A and B, as tenants by the entirety”). It requires the same four unities as the joint tenancy, plus the fifth unity of marriage. It can be terminated only by divorce, the death of one spouse, or mutual agreement of the spouses. This estate is controversial because in some states creditors of one spouse cannot levy on property held in tenancy by the entirety.
(b) Parties must be married at the time of purchase in order for it to be tenancy of the entireties
(c) Husband and wife are but on person in the law
(d) The disclosure to the marriage in the agreement makes Tenancy in the Entirety
(i) If marital relationship is not disclosed tenancy by the entireties will not be imposed
c) Joint Tenancies: Termination, pp. 303-313
i) Overview
(1) A joint tenancy may be unilaterally severed without notice to the other joint tenant.
(a) A joint tenancy is destroyed when there is an outright conveyance of one party’s joint interest to a third party
(2) Four unities are fundamental to both creation and perpetuation of a joint tenancy: interest, title, time, and possession.
(3) Voluntary or involuntary destruction of interest, title, time, or possession by one of joint tenants will sever joint tenancy.
(4) A joint tenancy may be terminated
(a) By mutual agreement of the parties;
(b) By any conduct or course of dealing sufficient to indicate that all the parties have mutually treated their interests as belonging to them in common; or
(c) By operation of law upon the destruction of any one or more of the necessary unities. ii) Conveyance
(1) A cotenant can always end or sever the joint tenancy merely by conveying her interest to another person. For example, if A and B are joint tenants, and B conveys her interest to C, then A and C now have a tenancy in common, because the unities of time and title are missing.
(a) Minonk Bank v. Grassman IL 1983 p310
(i) Ida deeds to herself to terminate JT, Bank sues because they want a survivors interest , Ida thinks Agnes will outlive her so she ends the JT so she can will it to someone else
(ii) If you can convey to yourself to create a joint tenancy than you can destroy JT by conveying land to yourself iii) Mortgages
(1) A lien on a joint tenant's interest in property will not effectuate a severance of the joint tenancy, absent conveyance by deed following expiration of a redemption period.
(2) A joint tenancy is not severed when one joint tenant executes a mortgage on his interest in the property, since unity of title has been preserved.
(3) Lien Theory of mortgage (Current in IL): Not a transfer of title, rather it is just a contingency.
(a) Under this theory unity of title is not disrupted
(4) Exception
(a) Title theory of mortgage: When there is a mortgage the title is transferred until the money is paid back. Under this theory unity of title is disrupted when there is a mortgage. When unity is disrupted it become tenancy in common.
(b) It is undisputed that any joint tenant may sever his or her joint tenancy interest in real property by ... mortgaging the joint tenancy interest.... Once the joint tenancy interest is severed, a tenancy in common results. iv) Patrician
(1) One guy splits and the other guy picks his slice of land
4) Easements
a) Easement Defined
i) In general, an affirmative easement is a nonpossessory right to use land in the possession of another. For example, if A owns an easement that allows her to travel over land owned by B, A holds an affirmative easement. In contrast, a negative easement entitles an owner to prevent another owner from doing a particular act on the second owner’s land.
(1) Example: If A owns an easement that allows her to travel over land owned by B, A holds an affirmative easement. In contrast, a negative easement entitles an owner to prevent another owner from doing a particular act on the second owner’s land.
(2) In the example above, A’s land that is benefitted by the easement is called the dominant tenement, while B’s land that is burdened by the easement is called the servient tenement. Every easement is classified as either appurtenant or in gross. ii) Rest. (First) Property § 450. Easement
(1) An easement is an interest in land in the possession of another which
(a) Entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
(b) Entitles him to protection as against third persons from interference in such use or enjoyment;
(c) Is not subject to the will of the possessor of the land;
(d) Is not a normal incident of the possession of any land possessed by the owner of the interest, and
(e) Is capable of creation by conveyance. iii) REST 3d PROP-SERV § 1.2 Easement And Profit Defined
(1) An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.
(2) A profit à prendre is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another. It is referred to as a “profit” in this Restatement.
(3) The burden of an easement or profit is always appurtenant. The benefit may be either appurtenant or in gross.
(4) As used in this Restatement, the term “easement” includes an irrevocable license to enter and use land in the possession of another and excludes a negative easement. A negative easement is included in the term “restrictive covenant” defined in
b) Express Easements:
i) Creation: Fee Simple or Easement
(1) The resolution of the problem of determining whether a deed intended to convey a fee simple title or an easement involves the consideration of the following factors:
(a) The amount of consideration;
(b) The particularity of the description of the property conveyed;
(c) The extent of the limitation upon the use of the property;
(d) The type of interest which best serves the manifested purpose of the parties;
(e) The peculiarities of wording used in the conveyance document;
(f) To whom the property was assessed and who paid the taxes on the property; and
(g) How the parties to the conveyance, or the heirs or assigns, have treated the property.
(2) Language
(a) Where the term “right of way” is used in a deed it usually indicates that only an easement or a right of passage is being conveyed or reserved. In such a case the instrument should be construed as conveying an easement unless the instrument, considered as a whole, indicates that the parties intended the passage of fee title.
(b) Although use of terms “over and across,” “across” or “over” when used alone in deed does not imply easement, when used in conjunction with restriction of use as right-of-way, it is considered to be evidence that easement was intended.
(3) Intent of Parties
(a) Courts should construe instruments so as to give effect to the intent of the parties
(b) When the intent to convey an easement is manifest, the employment of terms that would otherwise describe corporeal property only will not suffice to defeat the purpose of the grant or render the instrument void as a grant of an easement.
(c) Each word and provision should be given that significance which is consistent with, and will effectuate the manifest intention of the parties
(4) Rules of Construction
(a) A grant is to be construed in favor of the grantee, and a fee simple title is presumed to be intended to pass by a grant of real property Unless it appears from the grant that a lesser estate was intended.
(b) In the absence of language relating to the use or purpose of the grant, or language limiting the estate conveyed, a transfer of a strip of land is generally construed as passing an estate in fee.
(i) If one part of the land is given fee simple than if the word “also” is used than the rest is likely fee simple
(c) Instruments such as deeds must be construed most strongly in favor of the grantee, and against the grantor, in order to derogate as little as possible from the extent of the grant
(i) First, The court should be careful to try to give meaning to every clause and provision of the instrument.
(ii) Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created.
(iii) Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument. ii) Classification pp. 337-359
(1) Affirmative and Negative Easements
(a) The holder of an affirmative easement has the right to do things which, were it not for the easement, he would not be permitted to do. The hold of a negative easement may, by virtue of the easement, prevent the possessor of the land burdened by the easement form performing acts upon the land that he would otherwise have a legal right to perform.
(b) The term “easement” as used in this Restatement describes an “affirmative” easement, the right to make use of the land of another. A “negative” easement, the obligation not to use land in one's possession in specified ways, has become indistinguishable from a restrictive covenant, and is treated as such in this Restatement.
(2) Appurtenant or In Gross
(a) Appurtenant Easement: Benefits the dominant parcel of land
(i) When a dominant estate is transferred any easement appurtenant to it is transferred with it
(b) Easement in Gross: Does not benefit any land
(i) RR crossing land easement iii) Interpretation and Extent, pp. 361-377
(1) The scope of an easement may evolve over time as the manner, frequency, and intensity of use change. In general, the scope of an easement turns on the intent of the parties. The law usually presumes that the parties to an express or implied easement intended that the easement holder would be entitled to do anything reasonably necessary for the full enjoyment of the easement, absent evidence to the contrary.
(2) Dominant Estate
(a) Dominant party cannot use the easement for unintended purposes
(i) As a general rule, an easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenant.
(ii) If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcel is a misuse of the easement.
(iii) New Rule: When no significant change has occurred in the use of the easement from that contemplated when it was created, as in this case, the mere addition of other land to the dominant estate does not constitute an overburden or misuse of the easement.
(b) Burden to servient must be balanced by benefit to dominant
(c) As a general rule, when an easement is created by grant or reservation and the instrument creating the easement does not limit the use to be made of it, the easement may be used for “any purpose to which the dominant estate may then, or in the future, reasonably be devoted.”
(i) An easement created by a general grant or reservation, without words limiting it to any particular use of the dominant estate, is not affected by any reasonable change in the use of the dominant estate.
(ii) The fact that the dominant estate is divided and a portion or portions conveyed away does not, in and of itself, mean that an additional burden is imposed upon the servient estate. The result may be that the degree of burden is increased, but that is not sufficient to deny use of the right of way to an owner of a portion so conveyed.
(d) Dominant estate has duty to repair easement because they derive the benefit
(i) The owner of a dominant estate has the right to make reasonable improvements to an easement, so long as the improvement does not unreasonably increase the burden upon the servient estate.
(e) Dominant estate owner can give everyone he subdivides the land to access to the easement
(i) Servient must let them because it is the same type of burden, only of a different quantity
(3) Servient Estate
(a) Servient owner can do what ever he wants so long as he does not interfere with use of easement
(b) Servient owner must not interfere with easement
(i) He cannot obstruct a roadway; He may build fences along the roadway
(c) Servient has no duty to repair or maintain the easement
(4) Changing Easement
(a) Majority Rule: Once an easement has been established on the ground it cannot be changed without assent by both parties
(i) Dominant estate gets a veto on placement of the easement
(ii) It almost becomes fee simple because dominant gets power over servient estate
(iii) Once the location of the easement is fixed, it cannot be moved without the consent of the owners of both the servient and dominant estates.
(iv) Neither the owner of the dominant or servient estate may unilaterally relocate an easement once it has been fixed
(b) Restatement (Third) of Property (Servitudes) § 4.8(3) (Minority)
(i) “Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.”
(ii) Section 4.8(3) is a default rule, to apply only in the absence of an express prohibition against relocation in the instrument creating the easement and only to changes made by the servient, not the dominant, estate owner
(iii) Section 4.8(3) maximizes the over-all property utility by increasing the value of the servient estate without diminishing the value of the dominant estate; minimizes the cost associated with an easement by reducing the risk that the easement will prevent future beneficial development of the servient estate; and encourages the use of easements.
(iv) The rule permits the servient owner to relocate the easement subject to the stated limitations as a “fair tradeoff for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate.
(v) Under § 4.8(3), the owner of the servient estate is “able to make the fullest use of his or her property allowed by law, subject only to the requirement that he or she not damage other vested rights holders.
1. Policy: An easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose. iv) Succession, pp. 379-397
(1) Determining Appurtenant or In Gross
(a) Factors for appurtenant easement:
(i) The language creates two distinct tenements in which a dominant estate is benefited by use of an easement on a servient estate;
(ii) The language is clear and unambiguous; and
(iii) No inference can be drawn from the absence of words of inheritance.
(b) Appurtenant Easement Defined
(i) An appurtenant easement is a nonpossessory right to the use of another's land. It is an incorporeal right generally created for the purpose of benefiting the owner of the dominant estate (land to which the easement is attached) as the possessor of such estate; it runs with the land, is incapable of existence separate and apart from the dominant tenement, and is inheritable
(c) Easement In Gross
(i) An easement in gross is also an incorporeal, nonpossessory right to the use of another's land, but it is a mere personal interest. It belongs to its owner independently of his ownership or possession of other land; it is generally not inheritable, and vests only in the person to whom it is granted.
(d) The general rule of construction favors appurtenant easements over easements in gross, and an easement is never presumed to be in gross or a mere personal right when it can be fairly construed to be appurtenant to some other estate.
(2) Succession of Appurtenant Easements
(a) Intent
(i) Parties usually intend appurtenant easements to go on forever
(ii) The value of land depends on the easements
(iii) The lack of words of inheritance in a deed, devise or trust has no legal effect, nor does it create an inference as to the intent of the parties.
(b) Notice
(i) The successor party must have notice of the easement for it to have effect
1. If there is no record or actual notice than the easement is dead
2. Ct will not impose a burden on someone who did not choose to enter into it
3. This only applies if buyer paid something for the land (Bona Fide Purchaser for Value)
(c) Once an easement has become appurtenant to a dominant estate, a conveyance of that estate carries with it the easement belonging to it, whether mentioned in the deed or not.
(d) Succession to Dominant Estate
(i) Absent an express provision in the deed stating otherwise, an appurtenant easement is presumed to be transferred with the dominant estate.
(ii) The benefit of the easement runs with the land unless the terms of the transfer or the terms of the creation of the easement preclude the benefit from running
(e) Succession to Servient Estate
(i) If the servient estate is transferred, the burden of the easement runs with the land so as to be enforceable against the successors of the servient estate if the original parties intended that it run and if the successor to the servient estate had notice of the easement
(ii) If the easement is recorded the successor has constructive notice of the easement, implied by law, whether or not the successor is actually aware of the easement.
(iii) If the purchaser has knowledge of the easement, no matter how it was derived, he or she is subject to the burden of the easement.
(iv) Rest. 3d (Servitudes) § 4.6 Transferability Of Servitude Benefits
1. Except where application of the rules stated in § 4.1 leads to a different result, a servitude benefit that is not personal is transferable as follows:
a. An appurtenant benefit is transferable with the benefited interest or estate.
b. The benefit of a conservation servitude held by a governmental body or conservation organization as defined in § 1.6 is transferable only to another governmental body or conservation organization unless the instrument that created the servitude provides otherwise.
c. A benefit in gross is freely transferable.
2. A servitude benefit, whether appurtenant or in gross, is not transferable if personal. A benefit is personal if the relationship of the parties, consideration paid, nature of the servitude, or other circumstances indicate that the parties should not reasonably have expected that the servitude benefit would pass to a successor to the original beneficiary.
(3) Succession of Easements in Gross
(a) Restatement 3d View
(i) An easement in gross will not pass when the owner of the easement sells his land.
(ii) For the benefit of the easement in gross to pass to a successor the easement must be assigned
1. However, not all easements in gross are assignable
2. The court assumes the easement is assignable unless it is personal
(iii) Under the 3d Restatement all easements in gross are assignable unless the parties did not intend the easement to be assignable, or the assignability would offend some important public policy
(b) Older View
(i) If the primary purpose of the easement is to gain economic benefit, the easement is deemed commercial in nature and there arises a rebuttable presumption that it is assignable
(ii) If the primary purpose is to gain personal satisfaction, the easement is deemed non-commercial in nature and there arises a rebuttable presumption that is it not assignable.
(iii) 1st Restatement § 489
1. Easements in gross, if of a commercial character, are alienable property interests.
2. “An easement in gross is of a commercial character when the use authorized by it results primarily in economic benefit rather than personal satisfaction
(iv) 1st Restatement § 492. Factors In Ascertaining Alienability Of Noncommercial Easements In Gross
1. In ascertaining from the manner or the terms of its creation whether a noncommercial easement in gross is alienable, the following are important factors
a. The personal relations existing at the time of creation between the owner of the easement and the owner of the servient tenement;
b. The extent of the probable increase in the burden on the servient tenement resulting from the alienability of the easement either by increasing the physical use of the land or by decreasing its value;
c. The consideration paid for the easement.
2. Comment D: Personal relations between the owner of the easement and the owner of the servient tenement. Throughout its duration, an easement in gross is a burden upon the servient tenement. Since use under it involves, ordinarily, a more or less persistent interference with the possession or enjoyment of that tenement, the personality of those entitled thus to interfere is of importance to such possessor and such interference may well be permitted to one and denied to another. Not uncommonly, an easement in gross has its origin in a situation in which there exists a close personal relationship between the one in whose favor it is created and the owner of the servient tenement. Where this is true, there is, in the usual case, less likelihood that the parties intended to create a permanent and assignable right than where it is not true. The closer the personal relationship between the conveyor and the conveyee, the more likely it is that the parties to the creation of the easement intended its enjoyment to be personal to the conveyee, hence this relationship is a factor in determining its alienability.
a. A owns and possesses a private two-stall garage located in the basement of his house. He rents to his brother, who lives in a neighboring hotel, the privilege of using one of the two stalls in which to keep his car. The agreement is to run for the winter months. The brother sells his car to B and assigns to him the privilege of keeping his car in A's garage. The personal relationship between A and his brother is a factor tending to the conclusion that the privilege rented to him was not intended to be an assignable one.
3. Comment E: Increased burden on servient tenement due to alienability of an easement in gross. The extent of the burden upon the servient tenement resulting from an easement usually bears some relation to the quality of alienability attached to it. The greater the degree of alienability, the greater the burden. Factors in construction, which tend in the direction of limiting the burden upon the servient tenement, also tend toward the finding of limitations upon the alienability of the easement. Both private and social convenience are to be considered among such factors.
4. Comment F: Consideration paid. From the point of view of the owner of an easement in gross, there can be no question of the desirability of the quality of alienability. If circumstances should make impossible or impracticable a personal exercise of the use authorized, there will remain the possibility of receiving through sale the value of the use to another. This value is one which, upon the original purchase of the easement, in case of its acquisition by purchase, will enter into the determination of the purchase price. The amount of the purchase price will constitute some evidence as to the expectations of the parties to the conveyance with respect to the alienability of the interest being created.
a. In consideration of $5 paid by B, A, the owner and possessor of Blackacre, conveys to B a private right of way, constituting an easement in gross, across Blackacre. The conveyance does not contain the word “assigns” or any equivalent expression. The value of an alienable right of way across Blackacre would be $1000. B assigns the right of way to C. A holding that the right of way conveyed to B is inalienable and that C is not entitled to use the way as against A is proper, though had B paid $1000 for the right of way, a holding that C may make the use would be equally proper.
v) Termination, pp. 399-423
(1) Express Limitation
(a) If an easement is created to last a specific period of time, or to serve a particular purpose, it terminates upon the expiration of this period or when the purpose has been accomplished
(2) Express Termination by Owner
(a) An owner may terminate his easement by releasing it in a formal written instrument that meets the requirements necessary to create an easement.
(3) Abandonment
(a) The easement holder can terminate his rights by abandoning the easement with intent to relinquish ownership rights
(i) Non-use alone is seldom sufficient to extinguish an easement
(b) Abandonment of an easement requires an intentional relinquishment indicated by conduct which discloses the intention to surrender the right to use the land authorized by the easement.
(c) Abandonment requires more than simple nonuse of an easement, no matter how long the period of nonuse.
(d) Rest. §504: “A claim of abandonment can be upheld only where nonuse is accompanied by affirmative and unequivocal acts indicative of an intent to abandon and is inconsistent with the continued existence of the easement.”
(4) Misuse
(a) The easement owner can terminate his easement by improper exercise of his rights
(b) Trivial and inconsequential misuse neither justifies the issuance of an injunction restraining D’s right to use the easement expressly granted, nor warrants the authorization granted to plaintiff to close the easement
(c) Subdivision is not misuse
(i) Subdivision means that each of the parts of the dominant estate succeed to the privileges of use of the servient estate authorized by the easement
(ii) Rest. §488: “The fact that the dominant estate is divided and a portion or portions conveyed away does not, in and of itself, mean that an additional burden is imposed upon the servient estate. The result may be that the degree of burden is increased, but that is not sufficient to deny use of the right of way to an owner of a portion so conveyed.”
(5) Adverse Possession
(a) The servient owner can also extinguish an easement by making adverse use of the burdened parcel for the same period of time necessary to acquire easement by prescription
(b) To terminate an easement by adverse possession, the owner of the servient estate must take an action that would be permitted only if the easement did not exist.
(c) Rest. §506
(i) An easement is extinguished by a use of the servient tenement by the possessor of it which would be privileged if, and only if, the easement did not exist, provided
1. The use is adverse as to the owner of the easement and
2. The adverse use is, for the period of prescription, continuous and uninterrupted.
(d) The party claiming adverse possession must have acted with the intent to assert an adverse claim against the true owner.
(e) The owner of the servient estate claiming adverse possession of an easement already has the right to possess and use the land so long as that use is not inconsistent with the easement.
(f) To extinguish an easement over (or use of) the servient tenements, the servient tenement owner must demonstrate a visible, notorious and continuous adverse and hostile use of said land which is inconsistent with the use made and rights held by the easement holder, not merely possession which is inconsistent with another's claim of title.
(g) Timing: Where an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence his land and such use will not be deemed adverse to the existence of the easement until such time as (1) the need for the right of way arises, (2) a demand is made by the owner of the dominant tenement that the easement be opened and (3) the owner of the servient tenement refuses to do so.
(6) Extinguishment by Estoppel/Detrimental Reliance
(a) When the servient owner, reasonably relying on actions of the easement owner, engages in conduct inconsistent with the continuance of the easement. If servient owner would suffer unreasonable harm by restoration of the easement rights, the easement owner is estopped from asserting those rights and the easement is gone.
(b) Detrimental reliance on the conduct of the owners of a dominant estate may also result in a termination of the easement. Restatement of Property, supra, at § 505 acknowledges that the owner of a servient estate may seek to terminate an easement by estoppel:
(c) An easement is extinguished when action is taken by the owner of the servient tenement inconsistent with the continued existence of the easement, if
(i) Such action is taken in reasonable reliance upon conduct of the owner of the easement; and
(ii) The owner of the easement might reasonably have foreseen such reliance and the consequent action; and
(iii) The restoration of the privilege of use authorized by the easement would cause unreasonable harm to the owner of the servient tenement.
c) Non-Express Easements: pp. 425-444
i) Overview
(1) It is only when the title to property does not contain the claimed easement that the question even arises whether an implied easement exists, for if the easement were in the title, then it would be an express easement, not an implied one. ii) Easements Implied from Prior Existing Use
(1) Three elements are required for an easement implied from prior existing use:
(a) Severance of title to land held in common ownership;
(b) An existing, apparent, and continuous use when severance occurs, and
(c) Reasonable necessity for the use at time of severance.
(2) An easement by implication arises when the parties intended to create an easement but neglected to include or embody it in a written agreement
(a) If the easement is apparent (discoverable upon careful inspection of the premises), if the use is continuous (as opposed to occasional or temporary), and if the easement is important for the enjoyment of the claimed dominant estate, a court can reasonably find that the parties intended that the easement be created.
(3) Every implied easement is appurtenant, it is presumed to pass with grants of the dominant estate, except as prevented by the terms of the transfer or by the circumstances surrounding its creation
(4) Quasi-Easement:
(a) Using part of land for the benefit of another part, thereby giving rise to a quasi-dominant and quasi-servient estate
(b) When the common owner of the two parcels conveys the quasi-dominant estate, the grantee may claim an implied easement by grant in the quasi-servient estate under the proper circumstances.
(c) An easement is implied if at the time of severance, the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use.
(5) Scope
(a) The extent of use prior to severance usually determines scope
(b) Courts will generally permit additional use arising from foreseeable changes in the dominant estate, as long as no unreasonable additional burden is thereby placed on the servient estate. iii) Easements by Necessity
(1) Two elements are generally required for an easement by necessity:
(a) Severance of title to land held in common ownership; and
(b) Strict necessity at the time of severance.
(i) Under the majority view, strict necessity exists when the parcel in question has no legal right of access to a public road. Some courts only require reasonable necessity.
(c) The use of the claimed dominant and servient estates before severance is immaterial in establishing an easement by necessity
(d) Full utilization of dominant estate may not be diminished
(2) Four Factor Test for Establishment of a Visible Easement by Necessity
(a) There must have been a unity of common ownership followed by a separation of title of the subject property into dominant and servient estates;
(b) The purported easement must have been constructed, altered or artificially arranged by the common owner so as to constitute an open, obvious and visible benefit or advantage to the claimant's property and a burden to the servient portion of the premises;
(c) The purported easement must have been used long enough before the separation of title and under such circumstances so as to show that the alteration or artificial arrangement was intended to be permanent; and
(d) The purported easement must be reasonably necessary for the full beneficial use and enjoyment of the dominant estate.
(3) An easement by necessity will not arise in the absence of proof of strict or absolute necessity for the easement. See, e.g., Restatement of Property § 476 (1944)
(4) Policy: One who conveys an interest must have intended to convey with it all rights necessary for the enjoyment of the interest conveyed
(a) Such intent will be implied unless the language or circumstances of the conveyance clearly indicate that the parties intended to deprive the property of those rights.
(b) Access to other parts of one's property is not the controlling factor under a claim of a visible easement where the property owner is denied the use and enjoyment of such a significant, valuable and beneficial portion of the premises. iv) Prescriptive Easements
(1) In order for a prescriptive easement to arise, the claimant’s use must generally be (1) open and notorious, (2) adverse and under a claim of right, and (3) continuous and uninterrupted for the statutory period. Adverse possession principles are frequently used in interpreting these elements.
5) Covenants
a) Creation & Validity, pp. 445-469
i) Equitable Servitudes
(1) An equitable servitude is a promise concerning the use of land that:
(a) Benefits and burdens the original parties to the promise and their successors and
(b) Is enforceable by injunction.
(2) Test to overturn covenants: Equitable servitude will be enforced unless:
(a) It violates public policy;
(b) It bears no rational relationship to the protection, preservation, operation or purpose of the affected lands; or
(c) It otherwise imposes burdens on affected land that are so disproportionate to restriction's beneficial effects that restriction should not be enforced. ii) Real Covenants/ Covenants Running With Land
(1) A real covenant is a promise concerning the use of land that:
(a) Benefits and burdens the original parties to the promise and also their successors and
(b) Is enforceable in an action for damages.
(2) A real covenant may be either affirmative (a promise to perform an act) or negative (a promise not to perform an act).
(3) Most courts have applied “equitable reasonableness,” upholding only those restrictions that provide a reasonable means to further the collective “health, happiness and enjoyment of life” of owners of a common interest development.
(a) Reasonableness is determined by the effect on the development as a whole rather than on the individual homeowner challenging the covenant
(4) General Rules of Covenant construction.
(a) If the language is unclear or ambiguous, we will resolve the restrictive covenant in favor of the free enjoyment of the property and against restrictions.
(b) A court will not read restrictions on the use and enjoyment of the land into the covenant by implication.
(c) A court must interpret the covenant reasonably, but strictly, so as not to create an illogical, unnatural, or strained construction.
(d) A court must give words in the restrictive covenant their ordinary and intended meaning. iii) Covenants Restraining Alienation
(1) The following factors, if found, tend to support a conclusion that the restraint on alienation is reasonable:
(a) The one imposing the restraint has some interest in land which he is seeking to protect by the enforcement of the restraint;
(b) The restraint is limited in duration;
(c) The enforcement of the restraint accomplishes a worthwhile purpose;
(d) The type of conveyances prohibited are ones not likely to be employed to any substantial degree by the one restrained;
(e) The number of persons to whom alienation is prohibited is small Restatement of Property § 406 comment i (1944)
(2) Equal Protection
(a) Property Rights are not absolute; they may be made subject to reasonable regulations designed to promote general welfare
(b) If a [by-law amendment] serves a legitimate purpose, and if the means the [condominium association] adopted are rationally related to the achievement of that purpose, the [amendment] will withstand constitutional challenge.
b) Enforcement and Running of Covenants, pp. 471-512
i) The old Restatement held that the inconvenience of enforcing a burden on land should be allowed only when that inconvenience is balanced by a benefit to neighboring land ii) The new Restatement holds that such a covenant should be enforceable whenever the parties to the covenant intended this result iii) Equitable Servitudes
(1) In order to enforce a restrictive covenant on the theory of equitable servitude, it must be shown:
(a) That the covenant touches and concerns the land, and
(b) That the original covenanting parties intended the covenant to bind the person against whom enforcement is sought and to benefit the person seeking to enforce the covenant.
(2) Requirements for the Burden to Run
(a) In order for the burden of an equitable servitude to bind the original promisor’s successors, four elements must be met:
(i) The promise must be in a writing that satisfies the Statute of Frauds or implied from a common plan;
(ii) The original parties must intend to burden successors;
(iii) The promise must “touch and concern” land; and
(iv) The successor must have notice of the promise.
(3) Requirements for the Benefit to Run
(a) Only three elements are required for the benefit to run to successors:
(i) The promise must be in writing or implied from a common plan;
(ii) The original parties must intend to benefit successors; and
(iii) The promise must “touch and concern” land. iv) Real Covenants
(1) Requirements for the Benefit to Run
(a) The law requires only four elements for the benefit of a real covenant to run to successors: (1) the covenant must be in a writing that satisfies the Statute of Frauds; (2) the original parties must intend to benefit their successors; (3) the benefit of the covenant must touch and concern land; and (4) vertical privity must exist.
(2) Requirements for the Burden to Run
(a) In order for the successor to the original promisor to be obligated to perform the promise (that is, for the “burden to run”), the law traditionally requires that six elements must be met:
(i) The promise must be in a writing that satisfies the Statute of Frauds;
(ii) The original parties must intend to bind their successors;
(iii) The burden of the covenant must “touch and concern” land;
(iv) Horizontal privity must exist;
(v) Vertical privity must exist; and
(vi) The successor must have notice of the covenant.
(b) “Touch and Concern”
(i) In order to touch and concern land, the covenant must relate to the direct use or enjoyment of the land. For example, a covenant that restricts the height of future buildings on a parcel meets this requirement. In contrast, a covenant that requires an act having no connection whatsoever to the particular parcel of land (e.g., dancing a jig in the village square) does not “touch and concern.”
(ii) Courts concentrate primarily on whether the covenant has some economic impact on the parties’ ownership right by either enhancing or decreasing the value of land at issue.
(iii) For a covenant to touch and concern the land, it is not necessary that the covenant have a physical effect on the land
(iv) It is essential that the covenant in some way affect the legal rights of the covenanting parties as landowners. Where the burdens and benefits created by the covenant are of such a nature that they may exist independently from the parties' ownership interests in land, the covenant does not touch and concern the land and will not run with the land.
(v) To meet the requirement that the covenant touch and concern the dominant estate, it must be shown that the covenant somehow affects the dominant estate by, for example, increasing the value of the dominant estate.
(vi) If burden and benefit can run separate from the land then they probably do not touch and concern the land.
1. If the obligation can exist without the land than it does not touch and concern the land
2. Commodity sales generally do not touch and concern the land
(vii) Rest. 1st § 537. Relation Of Benefit And Burden
1. The successors in title to land respecting the use of which the owner has made a promise can be bound as promisor’s only if
a. The performance of the promise will benefit the promisee or other beneficiary of the promise in the physical use or enjoyment of the land possessed by him, or
b. The consummation of the transaction of which the promise is a part will operate to benefit and is for the benefit of the promisor in the physical use or enjoyment of land possessed by him,
c. And the burden on the land of the promisor bears a reasonable relation to the benefit received by the person benefited.
(c) Intent
(i) The intent of the original contracting arties at the time they entered into the covenant; the promisor must show that the original contracting parties intended the promise to run with the burdened land.
(ii) Restrictions in a deed will be regarded as for the personal benefit of the grantor unless a contrary intention appears, and the burden of showing that they constitute covenants running with the land is upon the party claiming the benefit of the restriction.
(d) Notice
(i) A covenant will not be binding on a bona fide purchaser for value of the burdened land if the purchaser did not have notice of it.
(e) Horizontal Privity
(i) The law traditionally requires that the original parties have a special relationship in order for the burden to run, called horizontal privity. In some states, horizontal privity exists between the promisor and the promisee who have mutual, simultaneous interests in the same land (e.g., landlord and tenant). Other states extend horizontal privity to the grantor-grantee relationship as well.
(ii) In order to show horizontal privity, it is only necessary that a party seeking to enforce the covenant show that there was some “connection of interest” between the original covenanting parties, such as, here, the conveyance of an estate in land.
(f) Vertical Privity
(i) Vertical privity concerns the relationship between an original party and his successors. Vertical privity exists only if the successor succeeds to the entire estate in land held by the original party.
(ii) Under the traditional approach vertical privity is a necessary requirement to enforce both the benefit and the burden of a covenant at law.
(iii) Vertical privity, which is ordinarily required to enforce a real covenant at law, requires a showing of succession in interest between the original covenanting parties and the current owners of the dominant and servient estates.
(3) New Restatement
(a) Intent and notice are always required
(b) Reasonableness, not esoteric concepts of property law, should be the guiding inquiry into the validity of covenants at law. We do not abandon the “touch and concern” test, but rather hold that the test is but one of the factors a court should consider in determining the reasonableness of the covenant.
(c) The pivotal inquiry, therefore, becomes what factors should a court consider in determining whether such a covenant is “reasonable” and hence enforceable.
(d) Court’s that follow the new Restatement conclude that the following factors should be considered:
(i) The intention of the parties when the covenant was executed, and whether the parties had a viable purpose which did not at the time interfere with existing commercial laws, such as antitrust laws, or public policy.
(ii) Whether the covenant had an impact on the considerations exchanged when the covenant was originally executed. This may provide a measure of the value to the parties of the covenant at the time.
(iii) Whether the covenant clearly and expressly sets forth the restrictions.
(iv) Whether the covenant was in writing, recorded, and if so, whether the subsequent grantee had actual notice of the covenant.
(v) Whether the covenant is reasonable concerning area, time or duration. Covenants that extend for perpetuity or beyond the terms of a lease may often be unreasonable.
(vi) Whether the covenant imposes an unreasonable restraint on trade or secures a monopoly for the covenantor. This may be the case in areas where there is limited space available to conduct certain business activities and a covenant not to compete burdens all or most available locales to prevent them from competing in such an activity.
(vii) Whether the covenant interferes with the public interest.
(viii) Whether, even if the covenant was reasonable at the time it was executed, “changed circumstances” now make the covenant unreasonable.
(e) § 3.1 Validity Of Servitudes: General Rule
(i) A servitude created as provided in Chapter 2 is valid unless it is illegal or unconstitutional or violates public policy.
(ii) Servitudes that are invalid because they violate public policy include, but are not limited to:
1. A servitude that is arbitrary, spiteful, or capricious;
2. A servitude that unreasonably burdens a fundamental constitutional right;
3. A servitude that imposes an unreasonable restraint on alienation under § 3.4 or § 3.5;
4. A servitude that imposes an unreasonable restraint on trade or competition under § 3.6; and
5. A servitude that is unconscionable under § 3.7.
(iii) § 3.2 Touch–Or–Concern Doctrine Superseded
1. Neither the burden nor the benefit of a covenant is required to touch or concern land in order for the covenant to be valid as a servitude. Whether a servitude is valid is determined under the general rule stated in § 3.1 and the particular rules stated in §§ 3.4 through 3.7.
2. Examples:
a. O, the owner of Blackacre, grants to Conservancy a perpetual facade easement over the exterior of the historically significant structure on Blackacre, and covenants for herself, her heirs and assigns, that the facade will be maintained and preserved. The fact that the covenant imposes an affirmative obligation to preserve and maintain the facade does not affect the validity of the covenant as a servitude.
b. O Company, the owner of Blackacre, grants to Conservancy an easement to maintain Blackacre as a wildlife habitat and covenants that O, its successors and assigns, will pay to Conservancy annually the sums necessary to maintain the land as wildlife habitat. The fact that the covenant imposes an affirmative obligation to pay money does not affect the validity of the covenant as a servitude.
(iv) Elimination of Vertical Privity: § 5.2 Persons To Whom An Appurtenant Benefit Or Burden Runs
1. Except as otherwise provided by the terms of the servitude, and except as provided in subsections (1), (2), and (3), an appurtenant benefit or burden runs to all subsequent owners and possessors of the benefited and burdened property, including a lessee, life tenant, adverse possessor, and person who acquires title through a lien-foreclosure proceeding.
a. The burden of a servitude does not run to the holder of a title superior to that held by the creator of the servitude.
b. The benefit or burden of an affirmative covenant runs to a lessee or life tenant only as specified in §§ 5.3 (lessee) and 5.4 (life tenant).
c. The benefit of an affirmative covenant runs to an adverse possessor who has not yet gained title to the benefited property only as specified in § 5.5.
2. §2.4 No privity relationship between the parties is necessary to create a servitude
c) Defenses to the Enforcement of Covenants, pp. 513-525
i) Abandonment
(1) Abandonment occurs when the conduct of the person entitled to the benefit of the covenant demonstrates the intent to relinquish her rights ii) Changed Circumstances
(1) Overview
(a) Look to effect on the benefited party and detriment of burdened party
(b) The doctrine will be applied only if the changed conditions have adversely affected the benefited lots, making it impossible to achieve the original parties’ intent, even if the covenant were enforced.
(i) The focus is not on the burdened lot… Instead, the courts will continue to enforce the restriction that is still substantially valuable to the benefited land, even though changed conditions have caused a hardship to the burdened owner.
(c) Under the changed conditions doctrine, a covenant becomes unenforceable when conditions in the area of the burdened land have so substantially changed that the intended benefits of the covenant cannot be realized.
(d) Easements are not governed by the changed condition doctrine, but restrictive covenants are.
(2) General Plan of Development
(a) Restrictive covenants unenforceable where there has been deterioration in the residential character of the neighborhood or a failure from the beginning of the restricted development, so that the restrictions no longer served their intended purpose.
(b) Most jurisdictions now recognize a change in the character of a neighborhood as a ground for affirmative relief against restrictive covenants by way of cancellation or modification where the change has been so radical as to render perpetuation of the restriction of no substantial benefit to the dominant estate, and to defeat the object or purpose of the restriction.’
(c) Restrictive covenants unenforceable where there has been deterioration in the residential character of the neighborhood or a failure from the beginning of the restricted development, so that the restrictions no longer served their intended purpose.
(i) There need not be any general plan of development in order to make a restrictive covenant enforceable if it is imposed by a grantor on a single tract conveyed by him for the benefit of adjacent property retained by him. iii) Relative Hardship
(1) If the hardship on the defendant is very great, and the benefits to the plaintiff is relatively minor, the court may refuse to issue an injunction, particularly if the defendant acted without knowledge of the covenant.
(2) Look to hardship on the burdened party
(3) A court may decline to issue an injunction where the hardship and inconvenience which would result from the injunction is greatly disproportionate to the harm to be remedied. Innocent mistake on the part of the party to be enjoined is a factor to be considered in applying the doctrine.
6) Nuisance
a) Nuisance, pp. 545-570.
i) Private Nuisance
(1) The wrongful interference with the use or enjoyment of land of another.
(2) The Restatement (Second) of Torts defines a private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” This definition is overbroad, however, because not all such invasions are private nuisances. The traditional distinction between nuisance and trespass hinges on the nature of the intrusion. If there is a physical entry onto the land of another, the case is evaluated as a potential trespass. However, cases involving fumes, smoke, light or other nontrespassory conduct are governed by nuisance principles.
(3) Private litigants have right to sue over public issues if they suffer something special the rest of the public does not suffer
(4) When one landowner's use of his or her property unreasonably interferes with another's enjoyment of his or her property, that use is said to be a private nuisance ii) Elements of Private Nuisance
(1) Intentional Interference
(a) As the Restatement (Second) of Torts provides, a person’s harmful conduct is deemed intentional if either (1) he acts for the purpose of causing the harm or (2) he knows that the harm is resulting or substantially certain to result from his conduct.
(2) Nontrespassory Interference
(a) The harmful conduct must be nontrespassory.
(3) Unreasonable Interference
(a) States vary widely on what constitutes unreasonable interference. Some equate unreasonableness with serious injury to the plaintiff; others use a multi-factor test including such items as the character of the neighborhood, the nature of the conduct, its proximity to the plaintiff’s land, its frequency and duration, etc. Under the Restatement (Second) of Torts approach, adopted in about one-third of the states, interference is unreasonable if the gravity of the harm outweighs the utility of the defendant’s conduct.
(b) The law of private nuisance requires the court to make “a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant's conduct.”
(c) An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.
(i) Illustrations:
1. A's factory produces severe vibrations that reach B's house 100 feet away. The vibrations shake window panes loose, cause ceilings to fall and produce cracks in the plaster. A's invasion is unreasonable.
2. A's smelter produces sulphurous fumes that waft over B's adjoining farm, killing some of his crops and severely damaging others. A's invasion is unreasonable.
3. A's chemical factory occasionally emits for short times unpleasant odors that are disturbing to B, a next-door neighbor, and his family. Whether the invasion is unreasonable is a question to be determined by the trier of fact under the principles of § 826, depending upon all of the circumstances involved.
(4) Substantial Interference
(a) Slight inconveniences or petty annoyances do not give rise to nuisance liability. But if a normal person living in the community would regard the interference as strongly offensive or seriously annoying, then the level of interference is substantial.
(5) Interference with Use and Enjoyment of Land
(a) Nuisance liability arises only from interference with the interests of an owner, tenant, or other land occupant in the use and enjoyment of land
(b) Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land.
(i) e.g., if fumes from defendant’s factory destroy plaintiff’s apple orchard. iii) Public Nuisance
(1) An unreasonable interference with a right common to the general public, including activities injurious to the health, safety, morals or comfort of the public.
(2) A public nuisance is “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts, § 821B(1). Almost any intentional conduct that unreasonably interferes with the public health, safety, welfare, or morals may constitute a public nuisance. Examples include keeping diseased cattle, detonating explosives on a residential street, and operating an unlicensed casino. Usually a public nuisance action is brought by a city or other governmental entity. A private party may sue only if he has suffered special injury. iv) Coming to the Nuisance
(1) Coming to nuisance: Problem with complete bar to recovery is that the nuisance maker ends up controlling what the land around it can be used for
(a) Gives too much power to the nuisance maker
(b) Most states have right to farm law that prevents them from getting sued by people who come to the nuisance
(2) The residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby:
(a) Plaintiffs chose to live in an area uncontrolled by zoning laws or restrictive covenants and remote from urban development. In such an area plaintiffs cannot complain that legitimate agricultural pursuits are being carried on in the vicinity, nor can plaintiffs, having chosen to build in an agricultural area, complain that the agricultural pursuits carried on in the area depreciate the value of their homes. The area being primarily agricultural, and opinion reflecting the value of such property must take this factor into account.
v) Remedies for Private Nuisance
(1) Injunction
(a) The traditional remedy in private nuisance cases was an injunction against the offending conduct.
(b) In almost all jurisdictions today, the plaintiff no longer has an automatic right to this remedy. Instead, the court will use a balancing test (called balancing the equities) to determine if an injunction is appropriate on the facts of the particular case.
(c) In general, a court will issue an injunction only if the resulting benefit to the plaintiff is greater that the resulting damage to the defendant.
(2) Damages
(a) If the nuisance is deemed permanent, the plaintiff receives damages for past and future harm in one lawsuit.
(b) Damages are measured by the extent to which the nuisance diminishes the fair market value of the affected property.
(c) Permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance.
(d) Judgment allowing permanent damages to landowners alleging injury to property from dirt, smoke and vibration emanating from defendant's cement plant would preclude future recovery by landowners or their grantees, and judgment should contain provision that payment by defendant and acceptance by landowners of permanent damages would be in compensation for servitude on land.
(e) However, if the nuisance is temporary or continuing, the plaintiff only receives damages to compensate for past harm (usually measured by diminished rental value or use value), and must sue again in the future as additional damages are suffered.
7) Takings
a) Introduction
i) “Nor Shall Private Property Be Taken For Public Use, Without Just Compensation”
(1) “Nor Shall Private Property . . .”
(a) Any type of private property may be acquired through eminent domain. The vast majority of cases involve the condemnation of a fee simple absolute estate in land.
(2) “. . . Be Taken . . .”
(a) In the usual eminent domain case, a government entity takes permanent physical possession of a particular parcel of land. Under some circumstances, a temporary physical invasion of land authorized by government or an overly-restrictive land use regulation might be takings as well.
(3) “. . . For Public Use . . .”
(a) Under the modern view, whether a public purpose exists is defined by the purpose underlying the government action. As long as the property is taken for a legitimate public purpose—one within the scope of the police power—the public use requirement is satisfied.
(4) “. . . Without Just Compensation”
(a) The Supreme Court defines just compensation as the fair market value of the property when the taking occurs. This means the amount that a willing buyer would pay in cash to a willing seller, but does not consider any sentimental or subjective value that the property may have.
b) Governmental Power to Take Property: The Public Use Requirement, pp. 571-591
i) Definition of Public Use
(1) “Public use” requirement of Fifth Amendment for taking of private property is coterminous with scope of a sovereign's police powers.
(2) Whether in fact the provision will accomplish its objectives is not the question: the constitutional requirement is satisfied if the state Legislature rationally could have believed that the Act would promote its objective.
(3) It is not essential that the entire community, nor even any considerable portion, directly enjoy or participate in any improvement in order for it to constitute a public use.
(4) “Public use” requirement was not an absolute bar against the transfer of condemned property to private entities. It was equally clear, however, that the constitutional “public use” requirement worked to prohibit the state from transferring condemned property to private entities for a private use. ii) Transfer to Private Owner
(1) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose.
(2) The sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.
(a) On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking. Kelo
(3) The transfer of condemned property to a private entity is appropriate in one of three contexts:
(a) Public necessity of the extreme sort requires collective action;
(i) Examples: Highways, railroads, and other instrumentalities of commerce
(ii) Policy: It is likely that landowners would hold out for more money
(iii) The exercise of eminent domain in such cases-in which collective action is needed to acquire land for vital instrumentalities of commerce-is consistent with the constitutional “public use” requirement
(b) The property remains subject to public oversight after transfer to a private entity
(i) Land cannot be taken, under the exercise of the power of eminent domain, unless, after it is taken, it will be devoted to the use of the public, independent of the will of the corporation taking it.
(ii) The “public use” requirement would have allowed for the transfer of condemned property to a private entity when the public retained a measure of control over the property.
(c) The property is selected because of facts of independent public significance, rather than the interests of the private entity to which the property is eventually transferred.
(i) The underlying purposes for resorting to condemnation, rather than the subsequent use of condemned land, must satisfy the Constitution's public use requirement.
(ii) The actual transfer must serve a public use. iii) Exceptions to strict public use rule
(1) Remediation of blight
(a) Exercise of police power
(b) Only way to correct blight is to take the land
(2) Common carriers
(a) Providing a service the govt could provide
(3) Public Utilities
(a) Quasi governmental
(4) Holdouts
(a) Holding out for more money serves no public benefit iv) Examples
(1) Hawaii Housing Authority v. Midkiff, (1984), the Supreme Court interpreted the public use test to allow Hawaii to condemn property from a landlord and then convey it to the tenant. The Court explained that its review was limited to determining if the legislature rationally could have believed that the condemnation would serve a permissible public purpose. Fee simple ownership of land in Hawaii was highly concentrated in a few owners. Thus, the statute merely regulated an oligopoly to reduce its social and economic evils, which the Court viewed as a classic exercise of the police power.
(2) Kelo v. City of New London
(a) The city of New London approved a development plan that was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation.
(b) Community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis-lot by lot, building by building.
(c) It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.
(d) Eminent domain is an inherent right of federal and state govt
(i) City usually does not have this power unless granted by the state
(e) Now eminent domain is easy to claim in federal court
(i) Kelo will likely not be followed
(ii) 38 states have considered laws like MI
c) Theory and Physical Takings pp 593-611
i) Overview
(1) At some point, land use regulation may so restrict an owner’s rights as to become a taking—thus requiring the payment of compensation—even though government does not physically occupy the land. Defining when such a regulatory taking occurs is one of the most controversial issues in property law today. ii) Takings Theories
(1) Reciprocity Advantage: Taking is permissible if there is some benefit to person land is taken from and society
(a) Example: Roads benefit landowners, zoning b/c everyone is harmed the same way and all get benefit
(2) Adjusting Benefits and Burdens of Economic Life: We all win and lose sometimes, government cannot operate without creating winners and losers, likely not a taking
(3) Investment-Backed Expectations: More someone is invested in land and the more they have an expectation of recovering that investment and the govt makes it impossible for them to recover then it is likely a taking
(a) Example: A lot of money is spent in reliance of govt regulation iii) Physical taking
(1) Per se Rule: Permanent physical occupation authorized by government is a taking regardless of the public interest that it may serve
(2) The government effects physical taking only where it requires the landowner to submit to the physical occupation of his land.
(3) Physical occupation of land for any period of time is a taking
(4) When the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, “the character of the government action” not only is an important factor in resolving whether the action works a taking but also is determinative.
(5) Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.
(a) Examples: Broken dam, airport next door killing turkeys
(6) Constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied.
(7) Whether the government floods landowner's property or does no more than require landowner to suffer installation of cable, the takings clause requires compensation if the government authorizes compelled physical invasion of property. iv) Example
(1) Loretto v. Teleprompter Manhattan CATV Corp., (1982), the Supreme Court held that any permanent physical occupation authorized by government was a taking regardless of the public interests that it may serve or the economic impact on the owner. The extent of the occupation at issue was relative minor—a wire cable and four small metal boxes on the roof and side of an apartment building. However, because any permanent physical occupation effectively destroys all of the owner’s basic property rights, the Court reasoned that a bright-line rule was appropriate.
d) Regulatory Takings Part b: 612-648
i) Overview
(1) No set formula exists for determining when a given regulation deprives the property owner of enough strands in his bundle of rights as to mandate compensation.
(2) “While property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.”
(3) A use restriction on real property may constitute a “taking” if not reasonably necessary to the effectuation of a substantial public purpose or perhaps if it has an unduly harsh impact upon the owner's use of the property.
(4) Courts make this determination by balancing several factors:
(a) The degree to which the property has been diminished in value,
(b) The remaining economic viability of the property
(c) The degree to which the investment backed expectations of the property owner have been thwarted by regulation,
(d) The character of the government’s action,
(e) Whether the regulation affords a reciprocal advantage to the property owner. ii) Determining Size of Regulatory Taking
(1) Whether or not it is a taking may depend on how the value of the land taken is calculated
(2) “Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole. iii) Per se Regulatory Takings
(1) Per se taking when there is a complete deprivation of the value of the land
(2) A regulation which “denies all economically beneficial or productive use of land” will require compensation under the Takings Clause.
(a) When a regulation that declares “off-limits” all economically productive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it.
(3) The Court has described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint.
(a) The first encompasses regulations that compel the property owner to suffer a physical “invasion” of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation
(b) The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.
(i) Total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation.
(4) Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with.
(a) The Court assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowner's title.
(b) Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.
(5) Example: Lucas v. South Carolina Coastal Council
(a) There, a South Carolina statute prohibited construction on plaintiff’s oceanfront lots, as part of the state’s program (among other things) to protect life and property from hurricane risks. Under the Court’s test, a regulation that denies the landowner all economically beneficial or productive use of his land is a taking unless the regulation is justified by background principles of the state’s law of property and nuisance. Finding that the statute had taken all value from plaintiff’s land, the Court remanded the case so that a state court could determine whether the statute was justified under prior property or nuisance law. iv) Balancing Regulatory Takings
(1) Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.
(2) Always apply Penn Central Test unless per se taking
(3) Whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely upon the particular circumstances in that case.
(a) The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.
(b) Factors Explained:
(i) Economic Impact: The govt can destroy some value and not compensate for it. It is permissible for the govt to require landowners to maintain the status quo. There is no necessary right to devote their land to the use that maximizes profit.
(ii) Investment Backed Expectations: Here, Penn Central could build the same structure (Transferred Development Rights) elsewhere so the investments are not wasted.
(iii) Character of the Action: Physical or regulatory, altering a relationship (L-T)
(4) A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
v) Temporary Regulatory Takings
(1) There are temporary takings and damages are an appropriate remedy for them
(2) The question whether the Takings Clause requires compensation when the government enacts a temporary regulation that, while in effect, denies a property owner all viable economic use of her property is to be decided by applying the factors of Penn Central
(3) The temporary nature of a land-use restriction does not necessarily preclude a finding that it effects a taking; rather, it should not be given exclusive significance one way or the other.
(4) A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. vi) Police Power
(1) If no harm is being prevented than the police power cannot be invoked
(2) It is not within the police power to confer benefit on some citizens
e) Development Exactions: pp. 649-659
i) Overview
(1) An exaction is a government requirement that a land developer provide specified land, improvements, payments, or other benefits to the public to help offset the impacts of the project. But when does an exaction become so great as to become a regulatory taking? ii) Essential Nexus
(1) Is it logical? Is solution reasonably related to the harm?
(2) The court must first determine whether the “essential nexus” exists between the “legitimate state interest” and the permit condition exacted by the city. If it finds that a nexus exists, it must then decide the required degree of connection between the exactions and the projected impact of the proposed development. iii) Rough Proportionality
(1) The harm possibly created must be proportionate to the remedy
(2) The second part of our analysis requires us to determine whether the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of petitioner's proposed development.
(3) No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.
(4) Ct needs specific findings pertaining to this situation
f) Just Compensation: (Handout)
i) Overview
(1) “Just compensation,” within constitutional provision requiring that just compensation be given for private property taken for public use, means the full and perfect equivalent in money of property taken, so that owner will be put in as good position pecuniarily as he would have occupied if his property had not been taken.
(2) The Supreme Court defines just compensation as the fair market value of the property when the taking occurs. This means the amount that a willing buyer would pay in cash to a willing seller, but does not consider any sentimental or subjective value that the property may have. ii) Fair Market Value
(1) A landowner whose land is taken in condemnation proceeding is entitled to “market value” thereof, which denotes what it fairly may be believed that a purchaser in fair market conditions would have given, or more concisely the market value fairly determined.
(2) When Government condemns property owned by a private nonprofit organization and operated for public purpose, just compensation clause of Fifth Amendment does not require payment of replacement cost rather than fair market value of property taken.
(3) Calculating Fair Market Value
(a) In fixing compensation for condemned property, it is sometimes necessary to disregard elements affecting market value of property, and where property has no market value, resort must be had to other data to ascertain its value.
(b) Although due consideration should be given to all available uses of property in fixing amount of compensation award, its special value to condemnor as distinguished from others who may or may not possess power to condemn must be excluded as an element of “market value.” iii) Exceptions from Fair Market Value
(1) Market value is not the sole measure of just compensation in eminent domain proceedings.
(2) “When market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards. . . . Whatever the circumstances under which such constitutional questions arise, the dominant consideration always remains the same: What compensation is ‘just’ both to an owner whose property is taken and to the public that must pay the bill?” iv) Size of Taking
(1) If only a portion of a single tract is taken the owner's compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. Such damage is often, though somewhat loosely, spoken of as severance damage. On the other hand, if the taking has in fact benefited the remainder the benefit may be set off against the value of the land taken.
v) Adjoining Land
(1) Where condemnation of distinct tract results in an increase in market value of adjoining tracts, the government on subsequently condemning adjoining tracts must pay their market value as so enhanced.
(2) Where public project includes taking of several tracts, but only one is taken in the first instance, owner of other tracts, when they are ultimately taken, should not be allowed an increased value resulting from the public improvement.
(3) The rule that owner of condemned land is entitled to no enhancement in value due to initiation of project occurring between date of authorization of project, which apparently will include his property, and date of actual taking of property, applies to severance damage.
8) Adverse Possession
a) Overview
i) Adverse possession is a blend of statutory and case law. All states recognize a statute of limitations for recovering possession of land from a wrongful occupant. In a majority of states, however, the other requirements stem from case law. In some states, statutes specify all of the acts necessary for adverse possession. A few states also require the adverse possessor to pay property taxes. ii) Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period iii) Exception: Adverse possession is not available against land owned by the federal government or many state governments. iv) Elements
(1) In order to establish a claim of adverse possession, there must be possession that is open and notorious, actual and continuous, exclusive, and hostile.
(a) These elements must be proven by clear and convincing evidence
(b) Possession of the property with each of the necessary concurrent elements for adverse possession must exist for the statutorily prescribed period.
(2) Presumption of possession is in the holder of legal title, so that party claiming to have adversely possessed the property has the burden of establishing the existence of each element.
v) Effect of Adverse Possession
(1) Successful adverse possession automatically extinguishes the former owner’s title and creates a new title in the adverse possessor by operation of law. As a practical matter, though, the successful adverse possessor needs to record a judgment or deed that confirms her ownership in order to convey her title easily.
(2) Adverse possessor cannot gain greater rights than the party in possession
(a) If adversely possessing a life-estate, the adverse possessor only gets a life estate
(i) Remainderman does not have any notice
(ii) Life-estate is based on the life of the original life-tenant vi) Character of Land
(1) The character of disputed property is crucial in determining what degree of control and what character of possession is required to establish adverse possession. Thus, wild and undeveloped land that is not readily susceptible to habitation, cultivation or improvement does not require the same quality of possession as residential or arable land, since the usual acts of ownership are impossible or unreasonable.
b) Actual Possession
i) The adverse possessor must take actual possession of the land. ii) Under the majority view, this means that the claimant must physically use the particular parcel of land in the same manner that a reasonable owner would, given its nature, character, and location.
c) Exclusive Possession
i) Overview
(1) The claimant must hold exclusive possession. His possession must not be shared with either the true owner or the general public, but must be as exclusive as would characterize an owner’s normal use for such land. ii) Exclusive to Everyone
(1) Must be exclusive to everyone (including other adverse possessors) not just record owner
(2) The possession must be exclusive. It is evident that two or more persons cannot hold one tract of land adversely to each other at the same time. ‘It is essential that the possession of one who claims adversely must be of such an exclusive character that it will operate as an ouster of the owner of the legal title; because, in the absence of ouster the legal title draws to itself the constructive possession of the land. A possession which does not amount to an ouster or disseisin is not sufficient.’ iii) Compared to Owner
(1) While possession of property by a party seeking to establish ownership of it by adverse possession need not be absolutely exclusive, “the possession must be of a type that would be expected of an owner”
(2) The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take. iv) Evidence of Exclusiveness
(1) Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom.
(2) A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.
v) Joint Adverse Possession (Minority Rule)
(1) Some jurisdictions recognize joint adverse possession, thus several parties may adversely possess the same property
(2) If they get adverse possession they end up with tenancy in common
d) Open and Notorious Possession
i) Overview
(1) The claimant’s acts of possession must be open and notorious—so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim. ii) Possession must be visible and open to a common observer.
(1) Where there has been no actual notice, the possession must have been so notorious as to warrant the inference that the owner ought to have known that a stranger was asserting dominion over his land.
(2) It must be so conspicuous that it is generally known and talked of by the public. ‘It must be manifest to the community.’ (Minority Rule)
(3) However, in order that the possession of the occupying claimant may constitute notice in law, it must be visible and open to the common observer so that the owner or his agent on visiting the premises might readily see that the owner's rights are being invaded. In accordance with the general rule applicable to the subject of constructive notice, before possession can operate as such notice, it must be clear and unequivocal iii) What constitutes open and visible possession has been stated in general terms, thus; it is necessary and sufficient if its nature and character is such as is calculated to apprise the world that the land is occupied and who the occupant is; and such an appropriation of the land by claimant as to apprise, or convey visible notice to the community or neighborhood in which it is situated that it is in his exclusive use and enjoyment. iv) It has been declared that the disseisor ‘must unfurl his flag’ on the land, and ‘keep it flying,’ so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.
v) Evidence of Notoriety
(1) Improvements by themselves supply notice without the adverse possessor being there
(2) By their nature, regular cultivation, improvement and enclosure of another's land constitute open and notorious acts of possession that would place record owners on notice of an adverse claim to the property.
e) Hostile Possession Under Claim of Right
i) Permission
(1) Permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will still operate to negate the element of hostility.
(2) Cannot adverse possess what you have a right to use
(3) Tenants cannot adverse possess until after the lease is over ii) Objective (Connecticut view)
(1) In most states, the requirement of hostile possession under a claim of right is met if the claimant merely uses the land as a reasonable owner would—without permission from the true owner.
(a) Possession may be hostile even if the claimant knows of no other claim and falsely believes that he owned the land in question.
(b) The adverse possessor's “subjective belief whether the land possessed is or is not his own and his intent to dispossess or not dispossess another are irrelevant to a finding of hostility.”
(c) The “hostility/claim of right” element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property.
(d) Policy: Adverse possession should not depend on mental state of plaintiff because it is so hard to prove
(2) Hostility is implied if all other elements are present
(a) They look to the actual physical facts of the possession to determine if such circumstances of notoriety exist so that the true owner is put on notice. They represent a belief that the nature of the possession alone is what is important and that a sufficiently notorious possession will always be enough to alert the owner. Therefore, the hostility is implied if all other elements have been established.
(b) It is inconceivable that if an adverse possessor actually takes possession of land in a manner that is open, notorious, exclusive and continuous, his actions will not be hostile to the true owner of the land as well as to the world at large, regardless of the adverse possessor's state of mind. iii) Subjective (Minority)/ Good Faith Requirement (Minority)
(1) Subjective (Maine View): Hostility is implied intent to hold title against record holder
(2) Minority requires a good faith claim of right to grant adverse possession
(a) One must enter upon the land claiming in good faith the right to do so. To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title.
(b) See Halpern v. Lacy Investment GA 1989 p808 iv) In some states the good faith requirement and hostility require conflict with each other and it makes it impossible to claim adverse possession
f) Continuous Possession
i) Overview
(1) The requirement of continuous possession means that the claimant’s acts of possession must be as continuous as those of a reasonable owner, given the nature, location, and character of the land. However, successive periods of adverse possession by persons in privity can be combined to satisfy the statutory duration requirement; this process is known as tacking. ii) Defeating Continuity
(1) Continuity will be defeated where the adverse possessor interrupts the period of possession by abandoning the premises, where an intruder's presence renders the possession nonexclusive, or where the record owner acts to eject the adverse possessor. iii) Ordinary Owner Standard
(1) The requirement of continuous possession is satisfied when the adverse claimant's acts of possessing the property, including periods during which the claimant exercises dominion and control over the premises or is physically present on the land are consistent with acts of possession that ordinary owners of like properties would undertake.
(2) The requisite possession requires such possession and dominion ‘as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.
(3) Don’t need to be on property continuously; rather, just as continuous as a normal owner there iv) Seasonal Occupancy and Such
(1) It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.
(2) Continuity of possession may be established although the land is used regularly for only a certain period each year.
(3) Subjective standard on time spent on property based on the adverse possessor’s schedule
v) Tacking
(1) A purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.
(2) Must be privity: Grantor—Grantee relationship, decedent—beneficiary
(a) In order for there to be privity:
(i) Deed
(ii) Inheritance
(iii) Bona fide Gift
(3) No tacking when property is transferred from one adverse possessor to another without any agreement
(a) Policy: A succession of trespassers should not defeat record title vi) Tolling
(1) The limitations period for adverse possession is extended or tolled when the owner is unable to protect his rights due to a disability such as infancy, mental illness, or sometimes imprisonment.
(2) Clock will stop running on adverse possession while record owner is in prison or underage
g) For the Statutory Period
i) The period for adverse possession varies from state to state. Most states use periods of 10, 15 or 20 years.
9) Intellectual Property
a) Trademarks, pp. 1195-1236
i) Overview
(1) A trademark can include any word, name, symbol, or device, or any combination thereof used to identify and distinguish one’s goods or service from those of others and to indicate the source of those goods and services.
(2) Purposes:
(a) Prevent consumer confusion (protect public from palming off)
(b) Protect goodwill of manufacturer (value of business beyond tangible assets) ii) P must prove mark is protectable
(1) Once a mark is registered, the Act affords a plaintiff one of two presumptions:
(a) That his registered trademark is not merely descriptive or generic; or
(b) That if descriptive, the mark is accorded secondary meaning.
(2) Secondary meaning exists “only if most consumers have come to think of the word not as descriptive at all but as the name of the product. iii) Consumer Confusion
(1) Even if the mark is sufficiently distinctive to warrant trademark protection, the defendant may still prevail by showing that its use of the mark is not likely to cause confusion, or to cause mistake, or to deceive.
(2) The Lanham Act prohibits the use of “any reproduction, counterfeit, copy, or colorable imitation of a registered mark” where “such use is likely to cause confusion, or to cause mistake, or to deceive.”
(3) The Lanham Act prohibits the use of “any reproduction, counterfeit, copy, or colorable imitation of a registered mark” where “such use is likely to cause confusion, or to cause mistake, or to deceive.”
(4) Types of confusion that constitute trademark infringement include where:
(a) Prospective purchasers believe that the senior user sponsored or otherwise approved of the junior user's trademark
(b) Potential consumers initially are attracted to the junior user's mark by virtue of its similarity to the senior user's mark, even though these consumers are not actually confused at the time of purchase
(c) Customers are confused as to the source of the junior user's product when this product is observed in the post-sale context
(5) Polaroid Factors
(a) Strength of the mark;
(i) Marks are classified in the following categories of increasing distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful.
1. Arbitrary and fanciful marks are, by their nature, stronger marks because they are identified solely with a particular product or service.
2. Mark gets stronger with more use and a secondary meaning such as Apple©
a. Secondary meaning can be lost such as “Xerox,” “Q-tip,” and “Thermos”
3. No protection for generic marks
a. Fear that too many words move to private and public is left with no words
4. Descriptive only gets a little protection
(ii) The strength of a mark has been defined as “its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous, source.
(iii) The relative strength of a mark is measured by its conceptual strength along the spectrum of marks, as well as by its significance in the marketplace
(iv) Ultimately, the strength of a mark is a function “of its distinctiveness, or its ‘origin-indicating’ quality, in the eyes of the purchasing public.”
(b) Degree of similarity between the two marks;
(i) “The test is not whether the consumer will know the difference if he sees the competing products on the same shelf. Rather, it is whether he will know the difference if the junior mark is singly presented and he has heard of the senior mark.”
1. In determining whether two marks are similar, the comparison is made “ ‘in light of what happens in the marketplace,’ and not merely by looking at the two marks side-by-side.
(ii) “The fact that a trademark is always used in conjunction with a company name may be considered by the trial court as bearing on the likelihood of confusion.
(c) Proximity of the products;
(i) Due to the proximity of the competitive products in the marketplace, consumers may be confused as to their source.
(ii) Factors to consider in determining the competitive proximity of the products include appearance, style, function, fashion appeal, advertising orientation and price.
(iii) Products which directly compete in the marketplace clearly warrant a finding of the highest degree of competitive proximity,” creating a strong likelihood of confusion.
1. Also, Greater likelihood of confusion if they are in slightly different market
(d) Likelihood that the prior owner will bridge the gap;
(i) The fourth Polaroid factor seeks to protect the senior user's interest in being able to enter a related field at some future time.
(ii) If the owner of a trademark can show that it intends to enter the market of the alleged infringer, such a showing is indicative of future likelihood of confusion as to source. The more closely the products compete, the shorter the gap is to bridge.
(iii) Applies to similar products such as jeans and shoes
(iv) Corporate history of expansion in other markets can help prove this
(e) Actual confusion;
(i) Evidence of actual confusion consists of (1) anecdotal evidence of confused consumers in the marketplace; and (2) consumer survey evidence
(ii) It is black letter law that actual confusion need not be shown to prevail under the Lanham Act, since actual confusion is very difficult to prove and the Act requires only a likelihood of confusion as to source.
(f) Defendant's good faith;
(i) Evidence of intentional copying by a junior user may be indicative of an intent to create a confusing similarity between the products.
(ii) This factor looks primarily for evidence that the defendants are attempting to “pass off” their products as having come from the plaintiff.
(iii) No free riders: Piggybacking on senior mark’s goodwill and advertising
(g) Quality of defendant's product; and
(i) If junior produces low quality product it makes the senior mark look bad if there is confusion (kills goodwill)
(ii) If junior product is low quality than it is less likely to produce confusion yet still could dilute the mark
(iii) If both high quality than there is confusion
(h) Sophistication of buyers
(i) The sophistication of purchasers in the relevant market, “is grounded on the belief that unsophisticated consumers aggravate the likelihood of confusion
(ii) Sophistication of consumers usually militates against a finding of a likelihood of confusion, though it might on occasion increase the likelihood of confusion, depending upon the circumstances of the market and the products.
(i) Tie goes to the senior mark iv) Fair Use
(1) The defendant may also invoke the “fair use” defense by demonstrating that the alleged infringement “is a use, otherwise than as a mark ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party.
(2) This defense “is based on the principle that no one should be able to appropriate descriptive language through trademark registration.
(3) To prevail on the fair use defense, defendants must show that:
(a) They used the mark in a non-trademark use;
(b) The phrase is descriptive of their goods or services; and
(c) They used the phrase “fairly and in good faith” only to describe their goods or services.
v) Abandonment
(1) A mark shall be deemed to be abandoned when its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall be prima facie abandonment.
(2) There are thus two elements for abandonment:
(a) Non-use and
(i) 2 years for abandonment (Lanham), 3 years for GAAT
(ii) Challenging infringing uses is not use, and sporadic licensing for essentially non-commercial uses of a mark is not sufficient use to forestall abandonment.
(b) Intent not to resume use.
(i) Congress wanted a mark to be deemed abandoned once use has been discontinued with an intent not to resume within the reasonably foreseeable future.
(ii) A proprietor who temporarily suspends use of a mark can rebut the presumption of abandonment by showing reasonable grounds for the suspension and plans to resume use in the reasonably foreseeable future when the conditions requiring suspension abate.
b) Copyright Law, pp 1237-1266.
i) Overview
(1) Copyright confers a positive right of the copyright owner to copy the copyrighted work as well as the right to exclude others form copying the work.
(2) Copyright protect the form that the author chooses in which to express ideas but does not protect the ideas themselves.
(3) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (17 U.S.C. Section 102(b))
(a) Wherever an author's expression of an idea is closely intertwined with the idea itself, the expression has "merged" with the idea and is therefore uncopyrightable. Under this "merger doctrine," where the author's ideas and procedures can be properly expressed in so few ways that " protection of the expression would effectively accord protection to the idea itself. ii) Fixation
(1) The work must be fixed in some tangible medium of expression form which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. iii) Originality
(1) The work must not have been copied from another work; however, provisions are available for copyright interest in compilations which include others’ works or derivative works which are based on another’s original work.
(2) Work is “original” to author and thus qualifies for copyright protection if work is independently created by author and possesses some minimal degree of creativity. iv) Creativity
(1) At least a minimum degree of independent skill or judgment must have been introduced into the work by the author.
(a) Copyright is supposed to protect creativity no just “sweat of the brow”
(b) In order for a work to meet originality requirement for copyright protection, the level of creativity required is extremely low, and work satisfies that requirement as long as it possesses some creative spark, no matter how crude, humble or obvious it might be; originality does not signify novelty.
(2) Facts
(a) Facts cannot be copyrighted but compilations of facts can be
(b) Compilations of facts are within subject matter of copyright, even though facts themselves are not copyrightable.
(c) § 102(a); that facts are never original, § 102(b); that the copyright in a compilation does not extend to the facts it contains, § 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, § 101.
(3) Compilations
(a) Factual compilations may possess required originality to qualify for copyright purposes; choices as to selection and arrangement, if independently made by compiler and entailing minimal degree of creativity, are sufficiently original to be subject to protection under copyright laws.
(b) Notwithstanding valid copyright in factual compilations, subsequent compiler remains free to use facts contained in another's publication to aid in preparing competing work, so long as competing work does not feature same selection and arrangement.
(c) Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.
v) Ownership
(1) General Rule
(a) Copyright ownership “vests initially in the author or authors of the work.
(b) As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.
(2) Work Made for Hire
(a) If the work is for hire, “the employer or other person for whom the work was prepared is considered the author” and owns the copyright, unless there is a written agreement to the contrary.
(b) Section 101 of the 1976 Act provides that a work is “for hire” under two sets of circumstances:
(i) A work prepared by an employee within the scope of his or her employment; or
(ii) A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
(c) To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of § 101.
(d) In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.
1. Independent contractors usually have some expertise and are not controlled much
2. Independent Contractor: Must have correct subject matter and signature for work for hire
(ii) Among the other factors relevant to this inquiry are:
1. The skill required;
a. More skill, more likely an employee
2. The source of the instrumentalities and tools;
3. The location of the work;
4. The duration of the relationship between the parties;
5. Whether the hiring party has the right to assign additional projects to the hired party;
6. The extent of the hired party's discretion over when and how long to work;
7. The method of payment;
a. Lump sum is more common for independent contractor
8. The hired party's role in hiring and paying assistants;
9. Whether the work is part of the regular business of the hiring party;
10. Whether the hiring party is in business;
11. The provision of employee benefits;
a. If benefits paid likely an employee
12. The tax treatment of the hired party
a. If tax withheld likely an employee vi) Fair Use
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(a) The first fair use factor is the purpose and character of the use made by the alleged infringer.
(b) Under the fair use doctrine, commercial use of an allegedly infringing work is disfavored whereas noncommercial use is not.
(2) The nature of the copyrighted work;
(a) This factor calls for recognition that some works are closer to the core of intended protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.
(b) The fair use defense is broader with respect to factual works than to creative or literary works. "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
(c) The scope of fair use is narrower with respect to unpublished works.
(d) "De facto publication . . . or dissemination" of a work in determining whether another's utilization of the material constitutes fair use, this only applies where the author has given "implied consent" through such action as performance or dissemination
(e) Posting without the owner's consent cannot constitute a "first publication" under fair use principles.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(a) The third factor addresses the amount and substantiality of the portion copied by the defendant in relation to the copyrighted work as a whole
(b) The amount of information infringed also depends on the quality of the information
(i) Same denominator problem as takings
(c) This factor has both quantitative and qualitative components, so that courts have found a use to be unfair where the quoted materials formed a substantial percentage of the copyrighted work or where the quoted material was "essentially the heart of" the copyrighted work.
(d) The wholesale copying of copyrighted material often precludes the application of the fair use doctrine.
(4) The effect of the use upon the potential market for or value of the copyrighted work.
(a) The fourth and final part of the fair use defense considers the effect which the allegedly infringing use had on the potential market for, or value of, the copyrighted work.
(b) The mere absence of measurable pecuniary damage does not require a finding of fair use.
(c) To negate fair use one need only show that if the 'challenged use should become widespread, it would adversely affect the potential market for the copyrighted work'. vii) Infringement
(1) Bases for Copyright Infringement
(a) To establish copyright infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) unauthorized copying of constituent elements of the copyrighted work.
(2) Damages
(a) The basis for monetary damages in an infringement action is set forth in 17 U.S.C. Section 594. That section enables a copyright owner to seek either "actual damages and any additional profits of the infringer" or " statutory damages."
(b) In determining a final statutory award, the Court must answer three questions:
(i) To what degree do the relevant postings infringe owner’s copyrights;
(ii) How many acts of infringement occurred
1. All the parts of a compilation or derivative work constitute one work."
2. If multiple but distinct works are collected and filed together at the Copyright Office under the same registration, they are to be considered a single work for the purposes of damages.
3. Statutory damages are to be calculated according to the number of works infringed and not the number of infringements
(iii) To what extent was the infringement willful.
1. An infringement is 'willful' if the infringer knows that its conduct is an infringement or if the infringer has acted in reckless disregard of the copyright owner's right
2. For each instance of non-willful infringement, the Copyright Act enables the Court to award statutory damages of "not less than $500 or more than $20,000 as the court consider just."
c) Right of Publicity, pp. 1267-1291
i) Misappropriation—Hot News
(1) Preemption
(a) Certain forms of commercial misappropriation otherwise within general scope requirement will survive preemption if “extra-element” test is met.
(b) Extra elements in addition to elements of copyright infringement that allow “hot-news” claim to survive preemption are: time-sensitive value of factual information, free-riding by defendant, and threat to very existence of product or service provided by plaintiff.
(c) To avoid preemption, P must show state law protects something outside of federal protection
(2) “Hot News” Exception
(a) Overview
(i) Has special value that is only for a limited time and is distinguishable from other facts.
(ii) An indispensable element of an INS “hot-news” claim is free riding by a defendant on a plaintiff's product, enabling the defendant to produce a directly competitive product for less money because it has lower costs.
(b) Elements of claim
(i) The plaintiff generates or collects information at some cost or expense,
(ii) The value of the information is highly time-sensitive
(iii) The defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it,
(iv) The defendant's use of the information is in direct competition with a product or service offered by the plaintiff,
(v) The ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. ii) Right to Publicity
(1) Celebrity's right of publicity is a species of intangible personal property.
(a) While celebrity is alive, celebrity's right of publicity takes on many of the attributes of personal property; celebrity's right of publicity can be possessed and controlled to exclusion of others, its economic benefits can be realized and enjoyed, and it can also be subject of contract and assigned to others.
(2) What’s protected from commercial exploitation:
(a) Image (Likeness)
(i) CA extended it to anything that evokes someone’s personality
(b) Name
(c) Voice
(d) Signature
(3) Celebrity's right of publicity can be descendible at death. (Most States)
(a) Policy:
(i) There is a lot of expectation value and all should not be lost when a celebrity dies.
(ii) Public has a right to know where a product comes from (like trademark)
(iii) Prevents free-riders
(4) Right to Parody
(a) Some things should be left in public domain for parody
(b) Cultural icons should stay in public domain for the sake of communication and richness and language