Intentional, physical invasion of real property, without permission or privilege.
-Only have to intend to be on the land. Don’t have to know you are actually trespassing.
Direct vs. Indirect Trespass Differences
Direct = Physical; and Indirect = Noise, Vibrations
Jack v. Steenberg Homes
Right to exclude (not absolute), mobile home across law.
Exceptions to right to exclude:
Privilege (police, surveyor); and Necessity (fire or other emergency) - ie: When life is at stake.
List the possible damages for Trespass
(1) Nominal, $1;
(2) Restitution, replacement;
(3) Punitive, rare*;
(4) Equitable (injuctions usually)
McGuire v. Yanke (Fence Law)
Landowner has cause of action has a to keep fence to prevent farm animals off property. Awarded punitive damages.
Difference between Herd District and Free Range
Herd District – must enclose property to keep livestock within your property;
Free Range – Landowner must fence animals out
Cost-Benefit analysis – cost of fence more or less than damage by livestock.
What is Encroachment?
When a piece of real property hangs over the property line of another owners premesis
When is a landowner entitles to equitable relief for encroachment?
A landowner is entitled to equitable relief to compel removal when significantly encroaching property. Even if unintentional or negligent, and cost of removal is substantial in comparative to injury to Plaintiff.
Exceptions to Encroachment Equitable Relief
Rare cases where cost is greatly disproportionate to injury.
D’s house encroached on P’s property, unintentional, wasn’t discovered until years later.
Somerville v. Jacobs
P accidently built warehouse on D’s land (improvement to real property). P sought injunction, force D to sell; or D pay for improvement. P won restitution. Unintentional improvement to owner’s property may cause (1) owner pay restitution; or (2) enjoin owner to sell property.
Limits to Right to Exclude?
except for Race, Creed, Color, National Origin, and Sex.
Brooks v. Chicago Downs Assn. – Private Enterprise can exclude for any reason, except for Race, Creed, Color, National Origin, and Sex.
N.J. Coalition v. J.M.B. Realty
Property rights evolve over time, and can leaflet inside a mall because it is a place that people do more than shop. Nature and purpose of the use of property.
Rule for Access to Public Land
Cannot prevent access to public land by building on private land around public land. EXAMPLE: Median watermark to low watermark is public property.
Define Adverse Possession
Open and notorious, non-permissive, exclusive, and continuous control through the Statutory Period of Limitations.
Ray v. Beacon – Summer home
Continuous = normal use = seasonal homes.
This is the case with the army guy who uses the house every summer.
E. 13th Street v Lower East Side
Homeless squatters – Constant is NOT continuous.
Tacking is present here
Define Tacking & what is necessary for it
Unbroken chain of privity = transfer chain is used to establish adverse
Privity is established either verbally or physical transfer - symbolic conveyance
req privity = arms length transaction
foreclosure or xfer from bank != to privity
Mistake v. Intent (Maj & Min rule) for Adverse posession
Majority Rule: There is no inquiry into State-of-Mind – fine if good, or bad faith. Focus on lack of permission by true owner
Minority Rule: There is inquiry into State-of-Mind – some require knowledge land is not theirs, some require mistake in belief on own land…creates problem of incentive to lie.
Generally cannot adverse possess government land, unless.
Factors to Weigh for Private Nuisance (BPL)
GRAVITY OF THE HARM:
1. Extent of the Harm;
2. Character of the Harm;
3. Social Value of the Use or Enjoyment Invaded;
4. Suitability of the Use Invaded to the Locality;
5. Burden on the Person Harmed on Avoiding the Harm
THE UTILITY OF THE HARM:
1. Social Value
2. Suitability of the Conduct to the Locality
3. The Impracticability of Preventing or Avoiding Invasion.
Scoresheet for Private Nuisance:
1. Character of the Area for P and D; (Zoning, historic use, etc)
2. Who was There First;
3. Nature of the Harm (Must be Substantial);
5. Ultra Sensitive v. Normal Bothering;
6. Impact on Region (if Factory employs lots of ppl)
Boomer v. Atlantic Cement
Case where the damage was realized for for π and awarded permanent damages.
Damages to be given to P until D able to do something in respect for $45M investsment of corp and 300 jobs that would be lost if D had to shut down.
Pendoli v. Ferrera
Nuisance recognized for P but because D was acting in good faith and properly operating his business time was allowed to give to move the pig farm but P should be protected in a practical manner in interim.
Escobar v. Continental Baking Co
Where P does not get nuisance remedy because he moved into area second, and refused to mitigate any harm (no turn on A/C).
3 Ways Nuisance Happen?
(1) Ultra Hazardous Activities;
(2) Negligence; and
(3) Intentional/Unreasonable Activities
Stop n' shop case
Rare occasion where P got $ damages for Public Nuisance
Because bridge closed down, able to show lowered avg receipts for business
Valid Defense for Nuisance Claims:
-Unusually Sensitive Plaintiff
McCarty v. Natural Carbonic Gas
D operated factory that caused extensive smoke (shit on P’s home). P won
Use Score Sheet from Brobrowskis factors: P was there first, Character of Area – neighborhood; Nature of Harm – soot on house and breathing discomfort; Frequency – daily; Normally bother people; and Impact on Region – minimal, slight reduction in profits.
Prah v. Maretti
No right to sunlight on your property, unless you had solar panels there first.
What is a Spite-Fence & what are the Majority/Minority rules?
Structure for sole, primary purpose to obstruct light, air, or view.
MAJORITY: Allows Spite-Fences
MINORITY: Does not allow Spite Fences
Rattigan v. Wiley
(Port-a-John case) Visually offensive uses, Crt. Awarded injunction as actions intended to harass landowner – odors/sound/visual condition = substantial harm. Recovery = diminution of rental value + cost of fence (barrier), and permanent injunction.
Visually Offenses uses
Brobowski’s Opinion: Must be Malicious, and Ugly in order to be actionable
Definition: Affects general public, wide-spread in range, indiscriminate in effect.
-Unreasonable interference with common rights to the public
-EXAMPLES: prostitution, air pollution, rock festivals
Three Part Test for Creating Public Nuisance
(1) Does conduct involve significant interference with public health, safety, peace, comfort, or convenience
(2) Conduct is proscribed by statute or ordinance
(3) Is conduct of continuing nature, or produce permanent/long-lasting effect and does The actor knows or should know the significant effect upon the public
Who can bring action for Public Nuisance?
Only public official or agency – unreasonable to give every member of the public the ability to bring an action for conduct that is nuisance to the whole.
Restatement 2d – Extends right of action to persons who sue as representatives of the general public or class action.
4 ways when adverse posession happens:
1. Color of title - Defective Deed | Get all
2. Color of title - Bad Deed Discription | Get all
3. Claim of Right - Bad Survey | Get portion
4. Claim of Right - Knowingly/Fraud/SHARK | Get portion
Remedies for Nuisance (Public and Private)
Define: Taking & give the test
Government can take land from private owner A (with just compensation) and give to private owner B if it is for future "public" use: ex: Railroads, hospitals, cemetaries
Test: Facts and circumstances if land will be used for public good.
Kelo v. City of New London, CT
Limit of the Taking's test
The city was sufficiently distressed and justified in carefully formulating an economic development plan, to warrant the taking of private residence.
Present Interests (Possessory Interests)
Everything Must Equal Fee Simple Absolute
-Fee Simple Absolute (whole pie), O to A and her heirs
-A testator passes real property to a divisee.
If an owner dies without will:
considered "intestate", property goes to heirs as specified by statute of decent
O to A and the heirs OF HIS BODY
In MA, RI....DE
O to A for life,
A dies, then the property reverts back to original owner, or Dukakis, if O is also dead
Fee Simple Subject to Condition Subsequent (FSSCS)
“But if” “Provided that” “However”
No automatic reverter, grantor has Power of Termination and Right of Re-Entry
These rights must be exercised.
Fee Simple Determinable
“So long as” “until” “while” “during”
Once the condition is met, automatic reverter. Most Draconian
Must use express words of condition
Fee Simple Subject to Executory Interest – same as Fee Simple Determinable
Triggering condition, which transfers property to third party
Contract regarding land’s use – grantor can use to enforce provisions
Marhenholz v. County Board
Deed said land to be used for school only, otherwise revert to grantors
due to words “only” + “revert” = Fee Simple Determinable
2 types of Executory Interest
-SHIFTING, O to A, then to B if B returns within the year.
-SPRINGING, O to A life, and one year after A’s death to B
Types of Tenancies and their definition
Tenancy in Commont
Joint Tenants - distinguished by right of survivorship, survivorship is severable - THIS MUST BE EXPRESSED otherwise its common.
Tenants in Entirety - survivorship is not severable - only for married couple, if not married its just common, can only be separated by death or divorce or mutual sale by 1 to other - THIS MUST BE EXPRESSED otherwise its common
Unities of Tenancies
Unity of Interest
Unity of Title
Unity of Time
Unity of Posession
Martin v. Martin
Mobile Home - Co-Tenancy case. Rights of co-tenants
Ouster must include entirety of property
Types of Waste:
Affirmative - deliberate creating of waste (knowingly) - Exception: when resource is already open/continuing current use.
Permissive - Failure to maintain estate (taxes, insurance, keep in good repair)
Ameliorative - Changing the property by increasing value (forest to condo complex) - think about intent of grantor & rights of remaindermen.
Remedies of Co-Tenants:
Damages - usually for indefeasibly vested remaindermen and reversioners only
Partitioning - By kind, by allotment, sale.
Injunctions - for holders of contingent interest (hard to get)
Future interest holders rights of current property over co-tennents or currenant tennants
No affirmitive, permissive or ameliorative waste
only VESTED interest holders (or posessory int) can bring suit
What is/is not part of marital estate?
Property acquired by either spouse during marriage except:
Educational Degree - Exception: only in NY (Obrien v. Obrien)
Gifts, Bequests, Devise etc given directly to one person
Anything you exchange for Gifts/Property you had before
Federal Tax Leins
No shield when tenants in entirety - CAN execute
Peebles v. Minnis
Can attach onto RE of tenancy in entirety in hopes that non-debtor's interest is extinguished (death/divorce). Cannot execute on attachement.
Roadmap of LandSales
1 - Brokers K between Seller and Broker
2 - OTPurchase - Buyer makes offer (with contingencies/riders to even tilt)
3 - Buyer Due Dilligenct - Inspections, Sellers statement
4 - P&S & Negotiation - Broker preps form tilted towards seller, buyer attaches addendum to neutralize
5 - Financing contingency must be met - (found in OTPurchase) Banks lawyer cannot allow closing until title is clear - 50 year cut off.
6 - Closing
Key elements of Deed
1. ID of parties
2. Description of land
3. Intent to convey
4. Signature of grantor
Key parts of a deed
Premesis - Names of parties
Habendum - Description & Conditions
Execution Clause - Signature, Seal, Date
Acknowledgement - Notary
3 Types of Deeds
(General) Warranty Deed - containt within it all 6 of the promises - listed on 397-398
Special Warranty Deed - contains some of the promises
Quitclaim Deed - most common (contains none of the promises)
6 Promises of Deeds
1. Seisin - Grantors promise that she owns at least the interest in land purported to convey to granteed
2. Right to Convey - Grantor promises she has full power to transfer interest
3. No Encumberences - Promise there are no outstanding mortgages/leases/unpaid taxes etc
4 + 5. Warranty & Quiet Enjoyiment - Promise of protection from paramount titles
6. Further Assurances - RARE - Obligates grantor to take steps necessary to cure defects in title. (buyoff adverse posessor etc)
Calculation of Damages for Seller
Agreed K price - Mkt Value @ DOBreach + incidentals and consequentials = $ for seller
Caluclation of Damages for Buyer
Mkt value @ DOBreach - agreed K price + incidentals and consequentials= $ for buyer
Fitness: Builder Liability
Liable when builiidng a new home to first time buyer for latent defects
Rarely liable to second owner - only if its withing such a close period of time since completion that implied warranty still reasonable.