issue spotter outline

8/10/2019 Issue Spotter Outline

1/15

PROPERTY Issue OLTerm Definition / Elements CasesRIGHT TO EXCLUDE v. RIGHT TO CCE!!RULE O" C PTURE Prior in Time# First person to take possession of a thing owns it Pierson v. Post

1. Possession Or2. Pursuit and mortally wounded, capture is practically certain

TRE!P !! Intentional intrusion on the property possessed by another Elements:

1. Intenta. Voluntary act

b. ot knowing not an e!cuse2. Intrusion

a. "oment of entry Exceptions:1. #onsent2. ecessity$. Public Policy

Remedy 1. %amages&a. ominal& '(en if no other harm has occurred

b. #ompensatory& #ost of restoring the property to its pre(ious

condition or by the diminution in its market (aluec. In)uncti(e& Order re*uiring someone to get off the property2. %eclaration& statement by the court that someone is trespassing$. #riminal

RIGHT O" RE !O$ %LECCE!! TO PROPERTY

OPE$ TO THE PU%LIC

+he more an owner has opened his property to the public, the morelikely it is that the courts will find public rights of access to the

property

Uston v. Resorts

RE !O$ %LE$E!!!T $D RD

Property owners do not ha(e aright to unreasonably e!clude peoplefrom their property.

Majority Rule: ule is limited to common carriers - irlines, inns/ Minority Rule: Property owners must ha(e a legitimate business interest for e!cluding

someone 0 disorderly, drunk, threat to securityUston v. Resorts

CI&IL RIGHT! CT '()* +itle II& Prohibits discrimination in places of public accommodation.'lements of a claim&1. %iscrimination2. ased on ace, eligion, ational Origin$. Public Place%oes not co(er gender, age, se!ual orientationPri(ate club e!ception

Dale v. Boy Scouts

$+ L , G I$!TDI!CRI-I$ TIO$

tate law prohibiting discrimination in places of publicaccommodation. 3ent further than federal law.1. Pla e# s long as an organi4ation meets in a physical place2. Pu li ommo0ation# e(idence of

a. road solicitation

b. upport by go(ernment organi4ationsc. Pre(ious recognition as a public organi4ation1. Distin tl2 Private Or3ani4ation

a. mall e!clusi(e membership Difference from Federal a!:1. Includes age, gender, familial status, se!ual orientation2. 5ist of places is e!tensi(e and says 6but not limited to7$. '!ceptions& pri(ate schools based on gender, religious orgs.

Dale v. Boy Scouts

LE "LETI$G I$!HOPPI$G - LL!

8 #onstitution does O+ re*uire mall owners to allow access forleafleting.

loyd v. "anner

ome state constitutions %O re*uire mall owners to allow access - 9/ #$ %oalition1


2/15

PROPERTY Issue OL

Term Definition / Elements CasesREL TIO$!HIP! -O$G $EIGH%OR!, TER RIGHT! 3hen owners de(elop land and e!pel water onto neighboring property,

the courts must determine whether this constitutes a (alid e!ercise ofht de(eloper:s right to use her own land or a (iolation of the rights ofthe neighbor to be free from flooding damage.

Majority &ie! Reasona le Use Rule# llowed reasonable discharge of water, pro(ided there is no substantial harm. %ecision of what is a reasonableuse is left up to the )ury or )udge depending on the circumstances of thecase

'rmstron( v. Francis

Minority &ie! $atural "lo5 / Civil La5 Rule# #annot discharge water in any wayother than through natural drainage paths.Common Enem2 Rule# bsolute right to cast off any unwanted water.

L TER L !UPPORT d)oining landowners ha(e an absolute duty to support theirneighbor:s land in its natural condition.

o absolute duty to support structure built on that land if the land in itsnatural condition would not support such structures.Only ha(e a duty not to act negligently in remo(ing support structures.

ia)ility: trict liabilityRET I$I$G , LL! eighboring landowners ha(e an absolute duty to maintain retaining

walls. ia)ility: egligence #oone v. Price!TRUCTURE! O$ L $D o duty to support additional structures on the land that would not be

supported in the land:s natural state. Minority &ie!: ome states ha(e statutes that re*uire supporting structures. "assachusetts tate

uilding #ode!U%+ CE$T !UPPORT urface owners ha(e an absolute right to sub)acent support for their

land. ia)ility: +hose who withdraw sub)acent support for the surface are strictly

liable for damage to the land in its natural condition.,ITHDR ,L O"GROU$D, TER

"any states impose a reasona le use standard re*uiring that ownersnot withdraw water or oil beneath the lands of other if this will result ina loss of support for the surface of neighboring land.

Friends!ood Development

ia)ility: egligence standard.LIGHT $D IR Owners are free to build in ways that interfere with neighbors: interests

in light and air. - o easement for light and air/ Fontaine)leau

Minority: pply nuisance doctrine to determine whether it was an unreasonableand substantial interference.

Pra* v. Maretti

$UI! $CE 8nreasonable and substantial interference with another:s use anden)oyment of their own property

Factors:1. "anner in which acti(ity is conducted2. Place where it is conducted$. Priority& who was there first;. ature of the acti(ity being harmed. 'ase of abating harm?. 8tility of the conduct

Pa(e %ounty

Remedies: Four Possi)le +utcomes:1. In)unction2. o elief $. %amages;. Purchased In)unction

Boomer %ement DeSario

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3/15

PROPERTY Issue OLTerm Definition / Elements Cases

D&ER!E PO!!E!!IO$ +ransfer of property to someone that is trespassingCLE R $D CO$&I$CI$G E&IDE$CE

Elements:1. ctual Possession2. Open @ otorious$. '!clusi(e;. #ontinuous

a. +acking b. easonal use 0 look at the land in the conte!t in which it

would be used. tatutory Period

Bro!n v. ,o))le #ome -

PRE!CRIPTI&EE !E-E$T!

5imited rights to use the property of another in a specific way

Elements:1. ctual 8 '2. d(erse or Aostile$. Open @ otorious;. #ontinuous


4/15

PROPERTY Issue OLTerm Definition / Elements CasesE !E-E$T! Irre(ocable er(itudes%ominant 'state One who benefits from the easement

er(ient 'state One that bears the burden""IR- TI&E

E !E-E$T!ight to do something on someone else:s land

Ri36t of ,a2# Obligation on landowner on which the road sits to

allow the neighbor to use the road for passage$EG TI&E E !E-E$T! ight to pre(ent people from doing things on your landE !E-E$T

PPURTE$ $T'asements that are intended to run with the land such that the benefitof the easement will pass to any future owner of the dominant estateand the burden will be imposed on any future owner of the ser(ientestates.1. Intend to run with the land2. In writing$. Owner of the ser(ient estate purchased with notice of the easement

,reen v. upo%ox v. ,len)roo0

E !E-E$T I$ GRO!! 'asements are not intended to be attached to the ownership of particular parcels of land.

EXPRE!! E !E-E$T!

I-PLIED E !E-E$T! e*uires common prior ownership7U !I8E !E-E$T! 'asements implied by prior use

Elements:1. #ommon ownership at some time in the past2. 8se of the ser(ient estate for the benefit of the dominant estate

was ob(ious and apparent$. ecessary and beneficial use of the land

,ranite Properties v. Manns

E !E-E$T! I-PLIED %Y$ECE!!ITY

n easement is implied by necessity.

Elements:1. #ommon ownership sometime in the past2. bsolute necessity

Finn v. 2illiams

CO&E$ $T! 5and use restriction intended to run with the land. ormally enforced by owners of the dominant estate against the ser(ient estate. egati(e #o(enants 0 prohibit certain kinds of uses Elements:1. 3riting2. Intent for it to run with the land$. otice to future land owners

a. ctual b. In*uiryc. #onstructi(e

;. +ouch and concern


5/15

PROPERTY Issue OLTerm Definition / Elements CasesE7UIT %LE !ER&ITUDE! 5and use restriction that is intended to run with the land.

Elements:1. 3riting2. Intent$. otice;. +ouch and #oncern

#+":1. Pri(ity

Remedy %amagesI-PLIED RECIPROC L$EG TI&E !ER&ITUDE

%e(eloped to deal with the intent, notice, and pri(ity of estate issuesthat arise when a de(eloper imposes grantee co(enants on a lot in aresidential subdi(ision and he intentional or inad(ertently lea(es therestrictions off of some of the deeds.

Elements:1. #ommon owner 2. #ommon Plan or cheme& Original de(eloper intended the lot to

be included in the plana. %eclaration stating that the co(enants are meant to be

mutually enforceable b. Presence of restrictions in all or most of the deedsc. recorded mapd. Presence of restrictions on the last deede. Owners: obser(ance of other restrictions

$. otice

Evans v. Polloc0 Riley v. Bear %rea0

DE"E$!E "ORTER-I$ TIO$ /-ODI"IC TIO$ O"CO&E$ $T!

'. Do trine of C6an3e0 Con0itions2. Relative Har0s6i9 Do trine# #ompares benefit to burden. If the

hardship to the ser(ient owner is great by considerable magnitudethan benefit to other owner

$. :uies en e# Aas tolerated (iolations of the co(enant in the past;. Un lean Han0s# Aas (iolated the co(enant himself . Esto99el# 3hen dominant estate owner orally represents he will

not enforce the co(enant to the owner of the ser(ient estate, hemay be estopped from enforcing the co(enant if it is shown theowner of the ser(ient estate changed his position in reliance of theoral argument.

?. La 6es# 3hen someone waits so long to bring a suit to en)oining a(iolation that the breaching % is unduly harmed by the delay itself.

. -ar;eta le Title ts# ome )urisdictions re*uire that people reGrecord co(enants after a certain period of time or it will terminate.

El Di Bla0ely v. ,orin

CO$DO-I$IU-! #ommon interest community where people gi(e up certain rights ine!change for certain benefits. Indi(iduals own their units in fee simple

and own common areas as tenants in common.'stablished by declaration#ondominium association with (otes di(ided according to the si4e ofthe units

oard has the power to manage common areas, pass rules regulating beha(ior ow regulated by statutes in most states

HO-EO,$ER!!!OCI TIO$!

esidential subdi(isions regulated by a homeowners association. Oftencommon areas are owned by a separate entity than the owners.


6/15


7/15

PROPERTY Issue OL

Term Definition / Elements CasesE!T TE! $D "UTURE I$TERE!T!+ypes of 'states&'. "EE !I-PLE

a. "EE !I-PLE %!OLUTE


8/15

PROPERTY Issue OLTerm Definition / Elements Cases"EE !I-PLE !U%+ECT TOEXECUTORY LI-IT TIO$

Future interest (ests in a third party other than the grantor after thecondition occurs.6O to , so long as used for residential purposes, and then to 7

ame as fee simple determinable e!cept the future interest belongs to athird party rather than a grantor

lienableFuture Interest& E?e utor2 Interest

LI"E E!T TE 'nds with someone:s deathPass to either the grantor C heirs as a re(ersion or to a third party as aremainder.

LI"E E!T TE ,ITHRE&ER!IO$

6O to for life78nlike fee simple absolute, no ability to pass the property on afterdeathInterest can be transferred%ependent on :s lifeFuture Interest& Reversion

LI"E E!T TE ,ITHRE- I$DER

emainders are either (ested or contingent.6O to for life, then to 7Future Interest& Remain0er , interests created in a grantee

LI"E E!T TE ,ITHCO$TI$GE$T RE- I$DER

emainder belongs to an unascertained person or if there is a conditionthat must be fulfilled before it can become possessory.6O to for life, then to if graduates from college7Future Interest& Remain0er

LI"E E!T TE ,ITH &E!TEDRE- I$DER

elong to an ascertainable person and no conditions must be satisfied before it becomes possessory.6O to for life, then to 7

solutel2 &este0# 6O to for life, then to 7&este0 !u @e t to O9en# 6O to for life, then to :s kids7&este0 !u @e t to Divestment# 6O to for life, then to , but if hasflunked out of law school, then the property shall re(ert back to O7Future Interest& Remain0er

"EE T IL Potential to last fore(er, ends if and when the first fee tail tenant has nolineal descendants to succeed him in possession6to and the heirs of his body7

bolished e(erywhere"ost states will con(ert it to a fee simple

ome states will con(ert it to a life estate and remainder LE !EHOLD E!T TE 'state lasts for a fi!ed time or by other agreement between a landlord

and tenant6O to for 1H years75andlordGtenant relationshipFuture Interest& e(ersion or emainder


9/15

PROPERTY Issue OLTerm Definition / Elements CasesRULE G I$!TPERPETUITIE!

In(alidates future interests that could (est too far into the future o interest is good unless it must (est, if it all, no later than 21 yearsafter the death of a life in being at the creation of that interest.

'pplies "o:Contin3ent T6ir0 Part2 "uture Interests A$ot veste0=1. '!ecutory Interests& 6O to so long as used for hosp, then to 72. #ontingent emainders& 6O to for life, then to if graduates7$. Vested emainders ub)ect to Open& 6O to for life, then to :s

children7;. Options& #ourts (iew options as e!ecutory interests

Does #ot 'pply "o &1. Vested Interests

a. e(ersions& O to for life b. Vested emainders& O to for life, then to c. Vested remainders sub)ect to di(estment& O to for life, then

to , but if2. #ontingent interests in the grantor

a. Possibility of e(erter& O to so long as used for a hospital b. ight of eG'ntry& O to for use as hospital, but if not, then

has right

%entral Dela!are%ounty 'ut*ority v.,rey*ound

-o0ifi ations 1. 3ait and ee 0 makes more future interests (alid2. 8niform tatutory ule gainst Perpetuities 0 JH Kear period$. tatutory #utGoff for =rantor ights;. "arketable +itle cts

J


10/15

PROPERTY Issue OL

Term Definition / Elements CasesREGUL TIO$ O" THE - RBET "OR HOU!I$GCO--O$ O,$ER!HIP 3hen one or more people own land in common. +hree Forms&

1. +enancy in #ommon2. 9oint +enancy$. +enancy in 'ntirety

TE$ $CY I$ CO--O$ form of concurrent ownership where two or more persons own thesame property at the same time.%*aracteristics:1. Un0ivi0e0 Interest# 'ach + owns right to possess entire property2. Ownership interests are fractional shares

a. =rantor can grant une*ual interest b. %etermines percentage of profits on the sale that each will get

$. 'ach interest is&a. lienable

b. Inheritablec. %e(isable

+OI$T TE$ $CY form of coGownership that is characteri4ed by a right of sur(i(orship.

%*aracteristics:'. Un0ivi0e0 Interest2. Aeld in e*ual shares$. Ri36t of !urvivors6i9# If one tenant dies, his interest

automatically passes to the sur(i(ing tenant -or is di(idedaccording to the fractional interests of multiple tenants/

;. ot inheritable. Four 8nities&

a. +ime b. +itlec. Interestd. Possession

?. e(er& +hrough transfer. %estroys right of sur(i(orship and createsa tenancy in commona. 5ease does not se(er the )oint tenancy

b. 5ease terminates with deathc. 8se straw person to se(er )oint tenancy

"en*et v. Bos!ell

TE$ CY %Y E$TIRETY form of coGownership a(ailable only to married couples.#haracteristics&1. 8ndi(ided Interest2. #annot be transferred without the consent of the spouse$. ight of ur(i(orship& #annot depri(e the spouse of the right to

possession or sur(i(orship;. 8nities&

a. +ime b. +ilec. Interestd. Possessione. "arriagef. "any states ha(e abolished the re*uirements that he parties

obtain their title at the same time%ifferences from 9ointG+enancy1. Indi(. 8ndi(ided interests cannot be transferred without consent2. #annot be reached by creditors of one spouse$. Partition is not a(ailable 0 di(orce instead

1H


11/15

PROPERTY Issue OLTerm Definition / Elements CasesOUT!TER 3hen one tenant e!cludes the other tenant from possession

'lements&1. #onduct that is sufficient to e!clude the nonGoccupying tenants2. #ommunication to the tenants an intent to e!clude them

CO$!TRUCTI&E OU!TER 3hen tenants are e!cluded from a property because it would beimpracticable for the coGowners to occupy the property together.

ituations&1. Physical Impracticability& +he space is too small for all of them tooccupy it

2. 'motional Impracticability& Parties cannot reasonably be e!pectedto get along sufficiently well to li(e together

+livas v. +livas

RIGHT! O%LIG TIO$!O" CO8TE$ $T!

,eneral Rule:1. ight to possess the entire property2. ight to transfer indi(idual fractional interests$. ight to share rents earned by the property in proportion to their

ownership interests;. ight to lease fractional interest without consent of other coG

owners


12/15

PROPERTY Issue OLTerm Definition / Elements CasesTE$ $CY T !U""ER GE 3hen a tenant holds o(er on an e!pired lease.

1. 'ntitled to )udicial process2. 55 can sue for e(iction or create a new lease$. 5iable to the owner for the market (alue of the lease during the

period of occupancyDUTY TO -ITIG TE 55 has a duty to mitigate damages by making reasonable efforts to find

a new tenant."ost )urisdictions re)ect 3ait and ee in fa(or of this approach

ased on looking at leaseholds from the perspecti(e of contractdoctrine instead of property doctrine

!!IG$-E$T 3hen a tenant transfers his entire interest to another party.1. 'ntire une!pired term of the lease2. Vertical pri(ity between original tenant and the new tenant 0 all

co(enants in the original lease run with the land and are bindingon the new tenant -assignee/a. ew tenant is directly responsible for rent

b. 55 can sue new tenant$. Original tenant and 55 also remain in pri(ity

a. 55 can sue old tenant

Sommers v. 5riddell

!U%8LE !E 3hen a tenant transfer a partial interest to another party1. +enant transfers the leasehold for a shorter period or reser(es the

right of reGentry2. Vertical pri(ity is missing and the original lease may not run with

the landa. ew tenant not directly responsible for rent, pays rent to old

tenant, who pays the 55 b. 55 cannot sue new tenant

RIGHT TO R%ITR RYRE"U! L

3hether a landlord has a right to refuse a subGlease or assignment toanother person for any reason at all.

Majority Rule 55 can refuse for any reason Slavin v. Rent %ontrol Minority Rule 55 must act reasonably in refusing -'specially in commercial leases/ 5endall v. Ernest CO$!TRUCTI&EE&ICTIO$ I$ LE !E!

3hen acts by the landlord -or a failure to act where the landlord has aduty to act/ so substantially interfere with the tenant:s *uiet en)oymentof the property that a tenant cannot li(e there and is constructi(elye(icted from the premises.

tandard&ubstantially and materially depri(ed + of beneficial use and

en)oyment of the propertyAigh standard 0 must be more than incon(enient or annoying

Remedy: +enant has the right to withhold rentI-PLIED CO&E$ $T O"7UIET E$+OY-E$T

+here is an implied co(enant of *uiet en)oyment in rental leases pro(iding that a landlord will not interfere with the tenant:s possession,use, and en)oyment of the property.55 can be responsible for the actions of other parties 0 'specially if heowns both properties

lackett

Remedy: 1. +enant can lea(e the property and refuse to pay rent2. "ay be entitled to damages including the cost of relocating$. "ay be able to stay and withhold rent

P RTI L CO$!TRUCTI&EE&ICTIO$

3hen a portion of the premises ha(e conditions that are so bad that atenant cannot li(e in them and has to mo(e out.%o not ha(e to mo(e out of the other portions.+enant is entitled to rent abatement on that portion of the premises

"in)ak (. andolph

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13/15

PROPERTY Issue OLTerm Definition / Elements CasesI-PLIED , RR $TY O"H %IT %ILITY

In the 1J?Hs, courts began implying a warranty of habitability. duty on the part of landlords to repair or maintain rental property to

keep it up to certain standards.ll things short of constructi(e con(iction

onGwai(eable part of any residential lease#annot contract around these re*uirements

9ar(ins

Remedies: 1. +ermination of the tenancy -rescission of contract/2. ent withholding$. ent abatement;. %amages. epair and deduct?. Aousing code remedies

RET LI TORY E&ICTIO$ landlord cannot e(ict a tenant simply because he asserts his legalrights protected by the implied warranty of habitability.

/illvie! 'ssociates 1mperial %olliery %o.

" IR HOU!I$G CT Protects against discrimination in housing based on race, se!, religion,family status, disability, national origin.

Protects a(ainst:

1. efusal to sellCrent2. %iscrimination in terms and conditions$. d(ertisements;. teering& tatements that a realtor makes about a neighborhood

Exemptions:1. eligious organi4ations2. Pri(ate clubs$. ingle family home sold or rented to an indi(idual as long as

indi(idual doesn:t own $ houses, no broker, no ad e!pressing preference

;. Owner occupied multiGfamily homes


14/15

PROPERTY Issue OL

Term Definition / Elements CasesPU%LIC L $D U!E / PROPERTY !O&ERIG$TY

O$I$G =o(ernment pre(ents harm from incompatible uses by di(iding a cityinto 4ones, resol(ing competing land uses.5imitations on Loning&1. Prior onconforming 8ses2. Variances$. Vested ights

PRIOR $O$CO$"OR-I$GU!E!

3hen owners established their structures before the new 4oning and itwould be unfair to apply these new limitations retroacti(ely.

Elements:1. 5awful use2. In e!istence when the 4oning ordinance was passed

imitations:1. uisance2. ubstantial change 0 neighborhood would be ad(ersely affected, it

would be inconsistent with surrounding 4oning$. ome )uris. put a time limit or strictly restrict any changes of use

"o!n of Belleville v. Parrillos

& RI $CE! Permission to de(iate from 4oning law with respect to a specific parcel. Majority &ie!: Elements:

1. Impose an unnecessary hardship2. Proposed use would not be contrary to the public interest and

would not substantially impair the purpose of the 4oning plan andordinance

tandard is highun with the land and may ha(e conditions attached

ote& 5aw is often ignored by boards and (ariances are granted whenthere is no substantial change and no one ob)ects

%oc*ran v. Fairfax

Minority &ie!: Practical difficulties& significant economic in)ury from enforcement ofthe 4oning ordinance

&E!TED RIGHT! 3hen a party relied upon 4oning code in his in(estments and is protected from retroacti(e changes in the 4oning law if the efforts ande!penditures were so substantial as to create (ested rights in thecompletion of the pro)ect

Majority &ie!: Elements:1. 'fforts and e!penditures were substantial2. %e(eloper was acting in good faith$. 8sually need at least a building permit, but also will need more

Stone v. 2ilton

Minority &ie!: Obtained site specific appro(al for the de(elopment%o not need a building permit

E-I$E$T DO- I$ =o(ernment condemns pri(ate property, pays the owner, uses it for public welfare

T BI$G! Fifth mendment +akings #lause protects property owners from

uncompensated taking of their title or depri(ation of their possessoryrights by the go(ernment.Prohibits go(ernment from&1. +aking pri(ate property2. For public use$. 3ithout )ust compensation

1;


15/15

PROPERTY Issue OLTerm Definition / Elements Cases

D HOC TE!T alancing test using factors to determining whether somethingconstitutes a taking.

Factors:1. '!tent of 'conomic Aarm2. Interference with In(estmentG acked '!pectations$. #haracter of =o(ernment ction

5eystone v. Bituminous%oal

Penn %entral v. #6%

PER !E T BI$G! egulations that are categorically deemed takings without regard to the public interest ser(ed. o factual in*uiry%ate(ories:'. Permanent 962si al invasions of 9ro9ert2>. De9rivation of all e onomi all2 via le use

a. 8nless the use was a nuisance or something prohibited by property law

orreto v. "eleporter ucas v. Sout* %arolina%oastal %ouncil

PU%LIC U!E 5and can only be taken for public use, cannot be taken for pri(atetransfer, e(en if the go(ernment is willing to pay.Public purpose satisfies the public use re*uirement.

5elo v. #e! ondon

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issue spotter outline

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