Property Law Cases – Flashcards

(Trespass to Land/ Conception of Property) Guy needs to deliver mobile home, alternative path is dangerous and costly, so he cuts through property after being told no. Get's hit with $100,000 in punitive damages. Punitive damages are at discretion of jury when there are nominal damages for intentional trespass The law recognizes that harm occurs in every trespass (no requirement for actual harm) Landowners right to exclude "one of the most essential sticks in the bundle" The whole reason for such large damages was to protect the interest in the right to exclude

(Trespass to Land/ Conception of Property) Guy seeks injunction of planes over his house. Flight over the house is not trespass. We own so much of the space above the ground as we can occupy or make use of Without possession, no right can be maintained. Ad coelom: Owner owns the ground below and the sky above

(Trespass Nuisance Divide) `Man rushed to put in a water well when he learned neighbor was seeking permit for septic tank. Balancing the interests of the competing landowners, the court held that the installation of the water well by the landowner was not an unreasonable use of the land, and the plaintiff failed to show that the balancing of the interest favored the septic tank Balancing the interests of the competing landowners. Private Nuisance (Substantial and Unreasonable interference with private enjoyment)

(Repeated Trespass) Hounds continually go onto Dr. Baker's land and bite his wife and mess with his animals. After 5 years he filed for an injunction. Court determined that there was no adequate remedy at law and approved the injunction. • Damages incapable of calculation or evaluation calls for equity • Threat of continued occurrences calls for equity

(Building Encroachment) Foundation encroached a few inches onto neighboring property. The court held that the building owner had to tear down the wall.

(Building Encroachment) Foundation encroached a few inches onto neighboring property court ruled that when the encroachment was unintentional and the cost would be unreasonable to take down the wall, then money damages should be given. • Balancing of the Equities • De Minimis: A slight harmless encroachment if it was unintentional

(Mistaken Improver) Built home on property he had forgotten was sold. Negotiations proved unfruitful, the Defendant entered the property and destroyed the house. • When you take the law into your own hands, equity is not on your side • You must not enter with "unclean hands" • If he hadn't, there are remedies that would have benefited the builder. • Allows one who mistakenly improves property various options: Remove building if possible, allows improver to recover difference in value, or allow improver to buy land. • if improver acts in bad faith to destroy property, he is liable for diminished value is waste; deterrent against self help.

(First Possession) Man was perusing a fox and another man came out and shot and took the fox. • Mere pursuit doesn't vest any ownership rights; you must kill, capture, mortally wound or trap the animal • Must also be continuing that pursuit • Beasts ferae naturae (wild by nature) belong to the hunter, however, Beasts ferae naturae belong to the owner of the property ratione soli (by reason of the soil). What happens when hunter shoots animal, and then it dies on private property? • Favor the chase (Lockean expenditure of labor theory) RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership.

(First Possession) Man kills a whale and follows tradition in allowing it to wash up onto the beach. The man who finds it sells it instead of contacting the town so the owner could go get the whale. • Because of the nature of whale hunting, the one who shot the whale possessed it, not the one who found the whale after. Look to CUSTOM • When all reasonable and practicable actions have been taken to secure a wild animal, the animal belongs to the securer • Defense used was case law that said the one who finds something posses it. RULE: When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer.

(First Possession) RULE: Damages may be recovered for the intentional frightening of game off another's land. A man makes his living by "seducing ducks". Another man scared the ducks away with a gunshot. Court says man can recover damages for the intentional frightening of game off another's land • Every man has a right to use his property as he pleases (seducing ducks) • If someone hinders another in his trade (seducing ducks), there is a cause of action • If the damage is caused by the same thing (competition) there is no action, unless malicious intent • Animus revertendi—animals that have a habit of returning can become property RULE: A party may not maliciously interfere with the legal use of the land of another.

(Discovery), RULE: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy. Man is left land his forefathers purchased from the indians. Another man purchased the same land from the U.S. government. The man who purchased from the indians wanted to exclude the other from the property. SC held that the the European countries have always been the owners of the land they settled, not the indians. Thus, the U.S. was the owner of the land and the other had no right to it. Government recreates the "chains of title" to determine who had a stronger claim The first transferee from the common grantor (the government or the first in the chain) has the strongest claim RULE: The Indians that inhabited the lands did not have the power to convey title. Absolute title rested in the discoverer of the land, not the Indians that used the land.

(Creation) AP was selling the news that INS had gathered. • There is no protected right in the news and current events, but there are quasi property rights at least between competitors. It need not be an absolute property to grant injunction. • There is a right to exclude others from time-sensitive or "hot" news that another has created through their efforts. • Defense that by posting it on a billboard, AP no longer had a right to it. , Between competitors in the news distribution business, news will be treated as "quasi-property," such that copying the news will constitute unfair business competition. You can protect the particular way you tell the news but not the event itself.

(Creation) Ford wanted Midler's voice for advertising. She refused so Ford got someone that sounded just like her. Court held that Ford appropriated what was not theirs. • Human voice is one of the most palpable ways identity is manifested and should be protected

(Accession) A man uses a bunch of trees to make hoops worth at least $700 in good faith, where the trees alone were only worth $25. • The motive of the taking (good faith, bad faith) is of great importance. If done in bad faith the owner of the original material should get the product with the increase in value. • Disparity in value is important. = The Lockean assumption that every person owns his labor. Which property right is more prominent? (A log within a house) • If one takes something and doubles the value, title transfers to the improver, and he should be liable only for the original value.

(Fixtures) Family buys a home, and the sellers take the water heater, chandeliers, and some mirrors that were screwed to the wall. Court ruled that the sellers must pay the buyer for all of these items because they were fixtures. • Can't determine what a fixture is based on the original buyers "secret intentions". • Factors include whether it is attached to the home, the purpose of the attachment, etc.

(Adverse Possession) RULE: Before the adverse possession period begins to run against subsurface land, the true owner must have knowledge of the trespass. Cave is discovered with entrance on one plot, but the cave under the land goes onto a neighboring property. The cave "owner" wants ownership of the entire cave based on adverse possession. Court holds that it was not conspicuous, and elements had not been satisfied. The AP must "unfurl his flag" on the land and ""keep it flying." If there was no notice, must have been so open, notorious, and visible that owner knew or should have known; so conspicuous that it is generally known and talked of by the public.

After SOL, Possession must be (1) actual, (2) exclusive, (3) open and notorious, (4) continuous, and (5) adverse under claim of right.

(Adverse Possession) Lady claimed land by AP after installing propane tank and driveway. Court held that she failed to prove she had a good faith claim of right since she knew it was not her property. Claim of Right: Belief that a person honestly believes that he has a superior right to the property. If there is a knowledge of lack of title and there is no basis for interest in the property, there is no good faith claim of right. Color of Title: A written instrument or other evidence that appears to establish title but does not in fact do so. Thus, if it's not a claim of right, one must have permission from the owner. The requirement of Good Faith is the minority view; most courts hold that lack of permission from the owner is sufficient, regardless of the subjective state of mind of the AP. Plus, the claim of right requirement requires that a person have a reasonable basis to believe they had a right to the land.

(Adverse Possession) Titles of property got mixed up along time ago. Howard ended up with Kunto's property deed and tried to quiet title. Kunto was able to gain title through AP. Continued improvements and management during the summer months counts as "continuous" Doctrine of Tacking: Where several consecutive purchasers received the wrong deed to the land they possess, there is sufficient privity of estate to permit "tacking" (10 yr + 10 yr) to reach the SOL RULE: Where several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.

(Sequential Possession) Chimney Sweeper finds the jewel and a jeweler takes it. Court finds that the finder has a clim to the jewel. The finder (F) of lost property has greater rights to the property to all the world except the true or rightful owner (or someone with prior or rightful possession) RULE: A finder of chattel has title superior to all but the rightful owner upon which he may maintain an action at law or in equity.

(Sequential Possession) 2 people found logs. The court gave the logs to the first finder. The ORIGINAL finder (F#1) can keep the property against all but the rightful owner. RULE: Between Finder 1 and Finder 2, Finder 1 get to keep property from all but the rightful owner

(Sequential Possession) Logs were cut on one property and two people converted the logs. Same principal as the other cases, first has the superior right. , RULE: Possession of wrongfully obtained property is sufficient title to enable the possessor to maintain replevin against someone who takes it from him.

(Accession v. First Possession) A man finds and converts the honey from a bee hive. Court holds that the owners of the land own the bees. With animals that have a fixed home, it is easy to decide on the basis of ratione soli RULE: Captured wild animals belong to the owner of the land where they were captured.

(Accession v. First Possession) Meteorite fell onto a man's land and another man found it and sold it. Court held that it was a "natural deposit" so the rule that the finder is the owner to all but the TO, RULE: Previously unowned property can become the property of an individual by virtue of becoming part of his soil.

(Accession v. First Possession) Man found brooch in house requisitioned by army. Owner of house claimed right to brooch as owner of the home. Owner sold broach, F brought suit since as F since the TO was never found. Analyze (1) possession of the land, (2) status and knowledge of the property, and (3) the circumstances of discovery—peel owned the real estate but never in possession of brooch Bridges v. Hawksworth, • Found wallet on the floor inside the store—went to finder because it was lost property South Staffordshire Water Co. v. Sharman • Ring at bottom of pool—real property owner has superior rights against non-owner who finds it; employee/employer Elwes v. Briggs • Boat was found embedded in soil, went to landlord even in a 99 year lease. Where original owner is not ascertained, real property owner who finds thing on his property has superior rights against all others (if it is abandoned), A finder of a chattel may have a superior property right to that of the owner of the freehold where such property was found when the freehold owner was never physically in possession of the freehold. -The chattel was lost and it was not attached to the land. D never physically possessed the premises; the brooch was never his. He had no knowledge of its existence prior to P's discovery of it

(From Hannah v. Peel) • Found wallet on the floor inside the store—went to finder because it was lost property

(From Hannah v. Peel)• Ring at bottom of pool—real property owner has superior rights against non-owner who finds it; employee/employer, Possession of land includes things attached to or under the land, in the absence of better title - Gold rings were under the Water Co's land as found in the mud at bottom of pool and therefore Water Co had prior right as occupier. Obiter: Where manifest intent to control land and things on it then also possess things on it

(From Hannah v. Peel)• Boat was found embedded in soil, went to landlord even in a 99 year lease. Where original owner is not ascertained, real property owner who finds thing on his property has superior rights against all others (if it is abandoned)

(Property and the Human Body) A person's abandoned body parts are used for research without his knowledge. He cannot sue the research entity on a conversion claim because only property can be converted, and cells are not property. • Reasons are that (1) It would hurt medical research (2) Rights should be decided by legislature, (3) Should have informed consent though RULE: People do not retain possessory interest or property rights in their body parts after removal to uphold a conversion action.

(Artist's Moral Rights) Artist sued under art preservation statute that moving his "site specific art" would take it out of the context it was created for. Court held that moving artists works were not a "physical defacement, alteration, etc.", thus it was okay. • It's all about interpreting the statue

(Cultural Patrimony) Man convicted for trafficking protected Native American cultural items in violation of federal statute. Gov. held that man was an expert and acted in bad faith and was thus guilty. • Defense was that statute violates due process in that it fails to give ordinary people notice about what conduct is prohibited.

(Protecting Right to Exclude: Criminal Laws Protecting Personal Property) A man had wrenches under his coat and guard stopped him before exit. Court held that even in a self service store, a limited amount of • In Larceny, the focus has moved from common law focus on a trespassory taking (was not in your possession at all) to the modern focus on intent element (bailee w/ intent to convert) • Weigh the behavior of D (intent), customer's proximity to the exit • People v. Gasparik: Man left his coat and took off tags. Guards stopped him before exit.= Convicted • People v. Spatzier: Owners saw man in ceiling mirror take a book. Stopped before exit = Convicted

(Protecting Right to Exclude: Civil Actions Protecting Private Property) Intel claimed filed trespass to chattels suit when former employee sent mass emails to current employees. Not a trespass to chattels because did not damage or impaired computer system. RULE: actual damages must be suffered with a trespass to chattel

(Protecting Right to Exclude: Self Help) Tenant not in compliance with lease or food safety codes. After warnings, Landlord entered with officer and changed all the locks (Self Help). Court held that landlord should have used judicial remedies. Landlord was forced to pay damages. • Common law Approach: self-help was often allowed, if done in a peaceful manner. • Majority view / modern trend: changing the locks is not peaceable as a matter of law. Landlord must go through judicial process. • Defense that it was peaceable.

(Protecting Right to Exclude: Self Help) Car was repossessed b/c ex-husband defaulted. Court held that Ford had a right to repose as long as it was peaceably; court held it was. Dissenting says a single woman in the middle of the night did all she could, and it was not peaceably.

(Exceptions of the right to Exclude: Necessity) Family out in storm tried to moor boat to property. Owner unmoored boat, family was injured and boat was destroyed. • Entrance onto others land may be justified by necessity

(Exceptions of the right to Exclude: Custom) It was custom for hunters to be allowed to hunt on unenclosed, unimproved land. Thus, one individual could not change that natural law/custom. • Even today there are "posting laws" in many states where owners must prominently post "no hunting" or "no trespassing" signs on unenclosed land.

(Exceptions of the right to Exclude: Policy) Workers for a social welfare program were convicted of trespass when the employer/owner did not want them to visit with an employee living on his property without him present, so he charged them w/ trespass. Court held that owner did not have a right to exclude people who the employee had invited to see them for his well being., RULE: Property rights will be weighed against other considerations, like interests of the general public

(License) Mr. Wood was evicted from a racecourse because he had been involved in fixing races. The court held that the owner was at liberty to remove him despite the fact that he had a contractual license (ticket)- however the owner was liable for damages for breach of contract. • A contractual license can be revoked at any time, even if it constitutes a breach of contract. • A ticket does not convey an interest in that place • A license couple with a grant is irrevocable (you can hunt on the land until u kill that deer) until the act is accomplished. Rule: contractual licence can be withdrawn at any time.

(License) Company creates phone directory database and gives buyers a license for non-commercial use. Customer uses it for commercial use and ProCD sues. Court held that the license was like a contract, and when the customer kept the program he agreed to abide by license. • License agreements are very important in the Intellectual Property world

(Bailment) Park-and-lock case. Man parks new car in parking garage and car is stolen, he sues the garage as under breach of a bailment contract. Court held that there was a bailment, and garage was liable for stolen car. • Creation of bailment requires that possession and control over the subject matter pass from bailor to bailee/ Excludes the owner and all others from possession. • Has there been sufficient delivery of possession and control? • Dispeker v. New Southern Hotel Co.: Bailment where man had bellboy park car. He kept the keys but showed boy how to start it without keys. Employee stole and damaged car. Bailment was created. • Scruggs v. Dennis: Bailment where man received parking ticket upon entry in garage. Several attendants on duty who did not operate car. Where there is limited access and patron presents ticket upon leaving, a bailment has been created • Rhodes v. Pioneer Parking Lot, Inc.: No bailment where lot was unattended. • Contracts aren't always efficient b/c people don't have time to shop around.

(Abandonment and Destruction) Couple bought a lot they could not sell and decided to abandon it by attempting to return the lot, trying to gift the lot, and finally ceasing to pay taxes on the lot. HOA wants association fees. Court held that the abandonment is not valid. • Possession is presumed to be in the party who has record of title, and since neither the title not deed was sold or transferred, they had not abandoned the property. • Traditional rule is that real property cannot be abandoned. • Whether personal property has been abandoned is a question of intent. The owner must intend to relinquish all claims with no intent that it be acquired by any particular person.

(Conservation of Estates) In his will, a man left his property to his three daughters until they married or died. One of the daughters claimed the home was given to them in fee simple. The court held that the intent of the will was not to give the property in fee simple, but to provide a home to them so long as they lived (3 life estates). Thus, the daughters had life estates, and the heirs held a reversion in fee simple.

(Conservation of Estates) Man gave city a building so long as it was used as a library, then to others (fee simple subject to executor limitation). When the executory interest was declared void under the RAP. This meant the rights did not comply with conservation of estates, there was a piece missing. Court held that corporation had a possibility of reverter, so shareholders of corp. got it.

(Numerus Clausus) Man tried to convey inheritance to heir's on "her Father's side". Given the qualified language, the question was whether the heir had a fee simple absolute or not. Court held that you couldn't create new types of inheritance. • Sometimes the numerus clausus frustrate parties' intent, but generally you can accomplish those intents using the limited set of building blocks

(Numerus Clausus) Lease conferred upon tenant the ability to terminate at "the date of his own choice". Landlord died and the executor is trying to get rid of Gerrish. Court held that the intent od the lease was clear, and the tenant had the right to stay until he alone terminated the lease or died. • A lease may provide for its termination at the will of only one of the parties

(Waste) Man had a life estate of a mansion from his father, his heirs and the heirs of his siblings has a contingency remainder in the mansion. He wanted to tear down the mansion and build an apartment high rise; those with a contingency remainder did not want that. • The tenant has only the right to use the estate, not to alter the estate. • Affirmative Waste: A misfeasance. When life tenant undertakes some affirmative act on property that causes excess damage to the reversionary or remainder interest. • Permissive Waste: Nonfeasance. When life tenant fails to take some action and the failure to act is unreasonable and causes excess damage to the reversionary or remainder interest. • Ameliorative Waste: Affirmative act by life tenant that significantly changes the property, but increases the value. This is still not permitted.

(Restraints on Alienation) A man leaves his wife all his possessions with the restraint that she cannot give "one cent" to any member of his or her family. Court holds that a restraint on a fee simple is void. • Today, court's will allow a restraint on alimentation of a fee simple for a limited time if it is reasonable related to some family estate planning objective • Even if she broke the condition, the heirs of the estate would have a right of reentry • The power of alienate promotes not being a slave to property, as well as economic efficiency

(Restraints on Alienation) A will stated that a property could not be "sold or transferred" and was to be used only by a second party. The court held that the restraint on alienation was invalid, but the restraint on use was still valid (which would ultimately have the same effect.) • Dissent says that since the restraint on use has the same effect to restrain alienation, it too should be thrown out.

(Partition) Tenants in common sue for partition by sale; other tenants in common ask for a partition in kind. Trial court decides a partition by sale is appropriate. Court of appeals held that partition by sale was not appropriate because woman was working on the lot. • Partition by sale: Sale the land and divide the money according to interests • Partition by kind: Divide the land according to interests. • A partition by sale is allowed only in an emergency where the land cannot be divided efficiently. Garbage Lady Case: "[A] partition by sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable, AND (2) the interests of the owners would better be promoted by a partition by sale."

(Contribution and Accounting) Co-Owner sued other owner for "ousting" her from the farm land in Utah. Court held that there was ouster because he would not allow her to be on the land, and co-owner was entitled to damages. • Ouster can be a variety of things; in general it is acts (or omissions [i.e. not accommodating]) of physical exclusion from the whole property. Cotenant need not prove self help. • When a co-tenant can prove ouster, he is entitled to damages for the rental value of possession. • A co-tenant is not entitled to the rental value just because he has not been living there and the other cotenant has; however, if the cotenant rents a room out then the other cotenant is entitled to his share of the rent. • When a cotenant makes repairs or improvement without the consent of other tenants, he is usually not entitled to contribution; Unless he acted in good faith that he was the only owner, or the repairs where essential to preserve or protect the common estate. • Once there is Ouster, the clock may start ticking for adverse possession.

(Severance) One of the joint tenants mortgaged his interest in the property before his death. Plaintiff cotenant claims ownership through right of survivorship, Defendant claims right as tenant in common through mortgage lien. Court held that a mortgage by a joint tenant does not sever joint tenancy and the mortgage does not survive the joint tenants. • Since all the property interest of a joint tenant is immediately and automatically transferred to at cotenant upon his death, any lien on that interest ceases to exist, since that interest is gone. RULE: Mortgaging an interest in a property does not sever joint tenancy

(Marital Interest) Whether a medical license is marital property subject to equitable distribution under state statute. Court held that it was property because statute was intended to be flexible to provide equitable distribution. • Very statute base • Defense that it was not property at all but an attainment of knowledge.

(Independent Covenant Model of Lease) Building burns down so T cannot use it, L sues for rent. Court holds that T must pay even though he can no longer use the property. • Portrays the concept of independent covenants model in that the court assumes the covenant to pay rent must be performed without regard to whether other covenants have been or can be performed (place burning down). • Allocation of risk: The tenant has assumed the benefits as well as the risks of the lease.

(Independent Covenant Model of Lease) RULE: The encroachment of a structure upon a portion of a leasehold constitutes an eviction and a defense to the entire rental payment otherwise due. L builds a wall that encroaches onto leased property. Court holds that this gave the T right of eviction in which he no longer had to pay rent; but he still had a covenant to repair. • In this case, the court did recognize the covenant to pay rent was dependent upon the quiet enjoyment of the land, but covenant to repair was independent still. • Today in the case of partial eviction T should be given a choice to terminate the lease of continue the lease with a claim to damages or abatement of rent for part lost to eviction.

(Independent Covenant Model of Lease) Man leased grazing land in England. Livestock ate paint on property and died. T sued L for rent paid. Court held that T was liable, not L. • Distinguished Smith v, Marrable, where L was liable to T for mixed contract for a house and furniture, and the house did not have furniture. This case was for land only. • Common law rule "caveat lessee" (tenant beware). There is no implied warranty here. • If a person agrees to pay rent, he is bound, even if the purpose he rented the land for cannot be attained.

(Extending the Independent Covenant Model of Lease) T raised constructive eviction defense in action for rent. Court held that there was a constructive eviction where L violated implied warranty of quiet enjoyment when he did not take action to correct the noise problem from the lounge that he owned. • RULE: when a landlord causes substantial interference with the enjoyment and use of the leased premises, the tenant may claim constructive eviction. • L's conduct, and not his intent is controlling in determining whether there was CE. • Defense that he wasn't the one making the noise, he couldn't help there loudness. • T generally must vacate in order to claim CE

(Dependent Covenants Model of Lease) T has stipulated in the lease that no other T could be allowed to sell prescription drugs. When another T was, and L did nothing to correct it, T left the premises and L sued for rent. Court held that a breach of a major provision of K created grounds for rescission. • This is a clear case that establishes a dependent covenants model where parties can stipulate dependence and independence through contract. • Defense that leases are conveyances and should be independent as opposed to contracts that are dependent.

(Dependent Covenants Model of Lease: Implied Warranty of Habitability) Various Ts claimed L violated implied warranty of habitability as set forth by city housing code. Court held that the modern housing required L to provide a habitable property under IWH and thus part of T's rent may have been suspended. • IWH generally cannot be waived in a lease, and gives T additional rights without being subject to immediate eviction. Jurisdictions rely on their housing codes • Illegal Lease doctrine says that if L was in violation of housing code when lease began, L cannot sue for rent; but T has no right to stay, so the L could get rid of tenants in a hurry. • Since the IWH is for residential leases and not commercial leases, constructive eviction or specific lease previsions are still very important in commercial lease provisions. • Remedies for violation of IWH are (1) Rescission of the lease, (2) specific performance of IWH, (3) damages for breach of IWH, (4) where L has sued for rent, a set-off amount for violation of IWH, and (5) in some Jx, withholding all or portion of rent until L corrects violation. • For damages in option 3-5, there are 2 formulas: (1) Damage Formula: Fair market rental value if in compliance with IWH - value when not in compliance with IWH; (2) Percentage Reduction Formula: (i) Fair market rental value if in compliance with IWH - value when not in compliance with IWH over (ii) Fair market rental value if in compliance with IWH, the multiply this by the rent reserved.

(Dependent Covenants Model of Lease: Duty to Mitigate) T signed lease and soon learned he would not be able to move in. He wrote a letter to L surrendering the lease. L sued for unpaid rent. Court held that L had a duty to mitigate damages. • Duty to Mitigate: A L must take reasonable measures to minimize time land is unoccupied. • A default rule subject to modification by the parties; purely a contract rule.

(Transfer of Interests) Prior T sued current L for a security deposit. The court held that a covenant to refund a security deposit does not run with the land. • Covenants that run with the land are covenants that touch and concern the land

(Transfer of Interests) The issue is whether there was an assignment or a sublease. ST/A gave Prime T (PT) promissory notes. PT claims they were deferred payment for the assignment, ST/A claims they were rent payments and since the building burnt down, he no longer has to pay. Court held parties intention was that it was an assignment, and thus payment was for the assignment and not rent. • Formalistic/ English Rule Approach: Based on whether PT retains a reversion (even for a day) • Intent Approach (used by this court): Intention of the parties governs determination of assignment or sublease • Defense that PT retained a right of reentry, acted like it was a sublease.

Lease stated that tenant couldn't sublet/assign without written consent from landlord. L refused to allow a sublease. Court held that refusal in a commercial lease had to be based on good faith and commercially reasonable objection, and this one was not. • Majority rule allows L to deny a sublease or assignment for no reason at all

(Trusts: Spendthrift Trust) A man left money for his brother in a trust. Creditors wanted access to the money. Court held the creditors could not access money in a trust. • Defense was that the trust violated the principles that restrain alienability. Court found that when the trustee has it and then when the beneficiary has his part, it is always alienable. • As soon as the beneficiary takes possession of the money, creditors have access to it. This is less effective for the creditors than getting it directly from the trust because they do not know when it is taken and have to sue intermittently. • Spendthrift clauses can be used only on trusts intended for the benefit of others.

(Delivery Requirement) Father promises his son two colts. The colts were never delivered to him before the father's death. The court did consider the fact that the son was going to pay the father for hay for the colts, but given the nearness to the father's death, the court held that a gift without delivery was void. • When the court considers the hay, they are considering other pieces of evidence that a valid gift had been made. • Today, courts stretch notions of constructive and symbolic delivery where intent is clear

(Delivery Requirement) Dying wife wrote a note to husband describing where various items were and who should have them. Heirs brought suit for all the items and husband claimed a gift by causa mortis. Court held that the note was not sufficient delivery of the gift and thus the husband did not have possession. • Causa Mortis means gifts in contemplation of death. Not only do these gifts require a valid delivery, but the donor must also die. • Dissent says that a requirement for physical delivery when the intent of the wife through a longhand written note is overly burdensome.

(Nuisance) Mine appealed a decision giving townspeople living near an iron mine damages from action for trespass and nuisance against the mine for the dust, noise, and vibrations from the mine. The court reaffirmed the traditional requirements for a cause of action in trespass, and held that the law of trespass in Michigan did not cover airborne particulate, noise, or vibrations, and that this complaint should be for nuisance. • To prevail in nuisance, P must prove (1) significant harm resulting from D's (2) unreasonable interference with the use or enjoyment of the property. • Dust particles do not normally occupy the land on which they settle. • Tests to demarcate nuisance and trespass: (1) was intrusion on or off P's land? (2) Was harm to land direct or indirect? (3) Was invasion by tangible or intangible matter? And (4) did intrusion deprive P of possession, or merely use and enjoyment of the land? • Courts are reluctant to find a nuisance where the intrusion is purely aesthetic, however, courts have been more receptive to depressing effects of funeral homes and graveyards

(Nuisance) Man made bricks on his property using a kiln that put out sulphurous acid gas which damaged the neighbors trees. court affirmed the judgment of the lower court and determined that the injunction was not issued in error because neighbor proved that he would have suffered irreparable injury for which there was no adequate remedy at law. • Defense that P came to the nuisance. D had been building bricks there since before P move in. Court said there would have been inadequate remedy and D cannot force neighbors to undergo such intrusion. • Defense that P waited too long (more than 25 yrs) to assert the claim. Court said that this nuisance was created recently when D started using coal dust. However, a person can obtain an easement by prescription to commit a nuisance through this. • The court uses "Sic Utere" meaning use what is yours so as not to damage others. Courts today in favor of the balancing approach say that is useless b/c it says nothing about what an injury could be. • While coming to the nuisance is still a defense, so as to prevent giving a person a right to intrude on all future neighbors, the court must balance timing, good faith, absence of spite, etc. • If a nuisance continues for more than the SOL for nuisance, a person can acquire and easement by prescription.

(Easement) D gave permission through a letter "signed but not sealed" to post a sign on a building for $25 a year. P sent $25 to D for 3 years and all the checks were returned. After 3 years D has sign removed and P sued for specific performance. Court held that the agreement was not a license since a license is revocable, and that this was an easement and specific performance was therefore appropriate.

(Creation of Easements) Landlocked Ps seek an easement through Ds land by necessity or by implication. Court holds that there is was no easement by implication because the use before it was severed (sold) was not so obvious, manifest or continuous as to show it was meant to be permanent; and there could be no easement by necessity because Ps conveyed property giving them access to a road without carving out an easement. • The court is harder on the grators (sellers) than the grantees (buyers) since the grantors can carve an easement out of the land for themselves if needed. It's a strong level of necessity ($700,000 worth).

(Creation of Easements) P used a road through D's property to build a home. He fixed the road a little ($100) and built a $25,000 home. The owner gave permission, or at least stood by and watched as P spent money and built a home in reliance on the use of the rode. Court held that this was an easement by estoppel. • Akers v. Moore: Awareness is sufficient to constitute permission

(Creation of Easements) P asked several times to negotiate an easement from D b/c/ trucks had to use D's property when using P's loading dock. In the midst of trial, D built a structure on the land where the easement would be. The court held that P had obtained an easement by prescription from D, the question was whether D could receive compensation for the land and moving a building from the land. Court held that obtaining the easement conferred the title on P, barring the prior owner from use of the land. Thus, D had to move the encroachment at his expense. • Like other encroachment cases, if the original owner's structure encroaches onto the easement by just a little, and the burden of removing the structure would be greater than any benefit, the court can allow the encroachment (de minimis). • When the prior owner knew that the other was claiming a right to the property when he added the structure and then an easement is granted, bad faith could also go into determination. • Dissent says that there should have been just compensation for the land • Perhaps you could prevent an easement by prescription by giving permission. • Absent explicit permission, continuous use of an easement over a long period of time without the landowner's interference would be sufficient for adversity.

P Hotel sues neighboring D hotel who is in the process of building a 14 story addition for an easement by implication or prescription for the sunlight and airflow. Court held that this type of easement is only given by grant, and has never been recognized through the law of nuisance either, and to grant the right would be judicial legislation.