Black Letter Law

Question 1

What is the rule of capture?

Answer 1

“to deprive of natural liberty into bring under certain control” -

certain control, it’s not going to get away from you, mortal wounding but these things are less than full possession.

Pierson V. Post- case of first impression is pursuit enough for ownership or must ownership require possession? no! first in time in conflict with economic labor theory

Question 2

Elements of the California Common Law “right to Publicity” White v. Samsung (created property)

Answer 2

1. D uses P’s identity- it didn’t need to be an exact likeness, it just needed to immediately jumped to people’s minds it oh this is Vanna White
2. Appropriation of P’s name or likeness to D’s advantage
3. Lack of consent
4. Injury- they made money without paying V white

Question 3

pre-possessory interest

Answer 3

where if you start your capture, but that captures interrupted by illegal activivity some type,

you have some rights in your bundle, but not all of the rights in your bundle. (and we do not know what rights)

Question 4

Popov v. Hayashi

Answer 4

unites capture and finders (popov was abandoned property)

qualified right to possession

Question 5

Property is lost (page 175)

IN2P

Answer 5

when the owner unintentionally and involuntarily parts with it

Question 6

Property is mislaid (page 175)

VKUF

Answer 6

when the owner Voluntarily and knowingly places it somewhere, but then unintentionally Forgets it.

Question 7

property is abandoned (page 175)

KRR

Answer 7

when the owner knowingly relinquishes all right, title, and interest to it.

Question 8

The essential Elements of a valid “inter vivos” gift are?

Answer 8

1. Donative intent- the donor must intend to make an immediate transfer of property
2. Delivery-The property must be delivered to the donee. So that the donor parts with dominion and control
3. Acceptance- the donee must accept he property- although acceptance of a valuable item is usually presumed.

Question 9

White v. Samsung Dissent,

how does Kaczynski see the relationship between public and private property.

Answer 9

1. we are giving too broad protection with the common law California right to publicity. We can stifle creativity becaue people will be afraid to be sued.
2. it was Wheel of fortune that should have sued Samsung.

Question 10

Right to exclude (Broad Rule)

Answer 10

We have an absolute right to exclude others from our property.

The right to exclude is paramount.

Question 11

Right to exclude Exception

Answer 11

RULE: • Property rights serve human values. Whenever you see the right to exclude understand the right to exclude is limited by human values, human dignity.

Question 12

b. MA Spite fence law (sundowner v. king)

Answer 12

(1. ) A fence or other structure in the nature of a fence which
(2) unnecessarily exceeds six feet in height and is
(3) maliciously erected or maintained for the purpose of annoying the
(4) owners or occupants of adjoining property…. (4 ELEMENTS)

Question 13

why do we make BLL broad

Answer 13

• you don’t want to constrain the law because as soon as you constrain the law and say, “it must literally be a fence.” You are going to have somebody who comes up with something slightly different. -

Question 14

Finders

Answer 14

a finder’s property interest gives him priority over everyone except the rightful owner.

Question 15

Elements of a private nuisance claim

Answer 15

1. Action must be intentional.
2. It must be non-trespassory - it means that whatever action is taking place. It’s happening in the defendants own yard their own space.
3. it has to be unreasonable. - The unreasonableness is the most contentious elements of private nuisance. (this is a balancing test-see private nuissance of smokehouse, CA BAR section 3)
4. substantial interference - whatever is happening in the defendants property must create a substantial interference to the plaintiff.
5. Must affect the use and enjoyment of plaintiffs land: - it cannot simply be that it exists. And it bothers you, it must affect the use and enjoyment of plaintiffs of land.

Question 16

rule of capture part II

modified for commercial use

Answer 16

1- location of capture matters if it’s private property. It belongs to. Who owns the private property if it’s public property or unclaimed property or Commons

2- type of chattel. Wild animals, trained, domestic, or animals with a habit of returning

3- Custom and practice (v. Rich, whaling)

Question 17

Popov v. Hayashi

Answer 17

who owns the ball. If the person is the person catching it is illigally stopped from doing so by other people leave (interrupted first possession). applying rule of capture to non living chattel- 1. Distinguish the baseball from the fox (Pierson). Think of where, when, how, why and type - inanimate object. It’s not going to run away, no brain - the baseball has abandoned property for the foxes on own property.

Question 18

Popov v. Hayashi- what is the interest called that popov had in the ball. THIS CASE BRIDGES FINDERS AND CAPTURE

Answer 18

Pre-possessory interest -one actor undertake significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has legally cognizable level prepossessing interest in that property.\ NOTE: pre possessory interest governance capture cases where there is illegal interference.

Question 19

Popov v. Hayashi

Answer 19

remember that some rights are protected (we do not know which ones), just some

Question 20

what are the three rules of capture

Answer 20

1: PIERSON: “to deprive of natural liberty into bring under certain control” 2. SHAW- 1. pursuer must bring under power and control through private enclosure. 2. they must maintain control subject to use at their own pleasure. 3. They have to show that they do not attend to abandon a maintain reasonable precautions to prevent escape and 4. then it will be felonious if someone takes them from the enclosure, 3: POPOV- Pre-possessory interest -one actor undertake significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others

Question 21

how use the rule of capture??? do you know?

Answer 21

you need to say: “This is more like a fox because or this is more like a fish because or this is more like a baseball because” compare the rules that you have to the hypo facts here is how open public unclaimed land is like the hypo facts, here is like a common like oceans and fishing is like a hypo facts or here is how this abandoned property that’s very quirky is very similar to the hypo facts. -Make sure that you apply each element of a rule that you don’t just state one part of the rule, you muat state the rule in its entirety. DO NOT SAY; “ this is like the fox period that does not give me any indication of how you were thinking”

Question 22

WHAT HAPPENS IF IT DOES NOT FIT INTO THE THREE RULES OF CAPTURE. I NEED TO ADD POLICY!!!!!!!!!

Answer 22

WHEN THINKING OF POLICY, THINK CUSTOMS. What are the customs on Lobstering in Maine or what are the customs of whaling (that was an in class example) or a baseball at the park. KEEP IN MIND THAT YOU MAY RECOMMEND YOU OWN RULE: SEE BELOW. If there’s any POLICY RATIONALS you want to think those through as well. if there’s hypo facts that lead us to say, we don’t want fish or Fox or baseball explain why none of those apply and they would lead to bad outcomes. That would be a policy rationale. We do not want to accept these because it’s going to lead to bad outcomes or if you have another way that is better. You also want to say here is why. What we have doesn’t fit, but here is how a better rule would apply here and here are the outcomes.

Question 23

popov v. hayashi what is qualified right to possession?

Answer 23

A qualified right to possession gives us some rights against subsequent possessors but does not give title. don’t tell you specifically what RIGHTS you do have

Question 24

capture on private property

Answer 24

private property owner gets it

Question 25

if you find something in the course of your employment, it goes to your employer, that is a broad rule.

WHAT ARE THE NARROW RULES OR POLICY USED

LABEL ALL BROAD RULE.

Answer 25

PLACE HOLDER

Question 26

what is a gift?

Answer 26

Gifts: Broad- it is and immediate transfer of property right from the donor to the donee, without any payment or compensation.

put another way:

1. immediate transfer

2. of property right

3. from donor to donee

4. withouth payment or compensation.

Question 27

inter vivos gift

Answer 27

Donative intent- the donor must intend to make an immediate transfer of property (want to give , You have to look to the objective actions to see if it meets that element.)

Delivery-The property must be delivered to the done. So that the donor parts with dominion and control

Acceptance- the done must accept he property- although acceptance of a valuable item is usually PRESUMED (only want to see that they haven’t affirmatively said no, thank you. Do not want it)

Question 28

What is a testamentary gift?

Answer 28

A gift the is effective only after the owner dies, this gift is valid only if it satisfies the statute of wills, which requires a writing signed by the donor and WITNESSED BY 2 PEOPLE AND MUST BE IN A WILL..

Question 29

What is a present interest?

Answer 29

Look at modified statement : immediate right to possession , or enjoyment

elongated definition

is a property interest in which the privilege of possession OR enjoyment is present and not merely future, you have to have it now (IT NOW, DOES NOT NECESSARILY MEAN WHAT YOU THINK, think the greun painting case)

Question 30

inter vivos gift part II

Answer 30

to make a valid inter vivos gift, there must exist an intent on the part of the donor to make a present transfer delivery of the gift either manual or constructive delivery to the Donee and acceptance by the Donee

Having title is important and valuable because you can mortgage it, by mortgaging title if you default on the mortgage, the bank or whoever is holding the mortgage, whoever is holding the loan documents can repossess the painting. When the younger gruen has it so they can still get the painting that would have increased in value

Question 31

future interest:

Answer 31

Is the interest in which the privilege of possession or enjoyment is future,

Question 32

conditional gift

Professor is going to put other items with conditions on it to fool you on the test. only and engagment ring can have conditions. and that depends on jurisdiction!

Answer 32

Consider a conditional gift in anticipation of marriage. and may go back to the donor depending on jurisdiction( there is no other type of conditional gift), conditions are met at marriage.

Holding in Montana- the holding is there is no conditional gift in Montana. it is treated as inter vivos gifts. (see completed gift below.

3 Types of Conditional Gift Rules

1. Completed Gift-. That’s what we just read an albinger it is a completed inter vivos gift. Once there is donative intent delivery and acceptance

2. No Fault- The no fault rule says that if the marriage does not happen. The ring that goes back to the donor, no matter what.

3. FAULT- states say that whoever is not at fault for ending the engagement gets to keep the ring so. That feels more fair to most people. Massachusetts

Question 33

Massachusetts law on conditional gifts

Answer 33

MA Law on Conditional Gifts (MUST KNOW FOR EXAM) not verbatum

M.G.L.A. 207 § 47A

Breach of contract to marry shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor. (NOTE: this statute does not have to do with return or the rings, it states that one party cannot sue the other for “Breach of Promise”)

MA has no statute re: return of engagement rings

An engagement ring is in the nature of a pledge, given on the implied condition that marriage will take place, and if the contract to marry is terminated__without fault of the donor_____, he or she may recover the ring

DeCicco v. Barker, 1959, this case announces a fault system

Question 34

Gifts Causa Mortis-

Answer 34

disfavored under the law, (this is revokable v. inter vivos (not revokable)

Considered will substitutes, disfavored by courts because Increased the chance of fraud

Definition? gift of personal property (only) in contemplation of death (imminent) , typically revoked if did not die. They do not need to be in writing (not for real estate)

Elements Of gift Causa Mortis

1, donative intent

2. delivery-the courts have waffled, but physical transfer is not enough, you need something.
   3) acceptance
3. donors anticipation of imminent death (sometimes merged in donative intent)

Question 35

comments on Gift Causa Mortis Delivery

Answer 35

But if you say you may have all of my jewelry. Here’s a piece of lintThat comes from my pocket where I normally keep my ring. Some courts will say, that’s enough. There was a physical transfer, even though that physical transfer doesn’t really meet what we would look for an interview those gifts.

Other states have said no, absolutely not. You need to have something in writing, you need to have some sort of constructive delivery of something

Even if it’s here are my house keys. I’m jumping out of a plane that was house keys will give you access to the jewelry

Question 36

Gift Causa Mortis

Answer 36

It has to meet all of the elements of interview both gift, but it must be made in contemplation of or peril of death, the donor must die of that specific peril.

Question 37

FHA Overview

Answer 37

race

Color

Religion

Sex- sex was straightforward and is going to be a future battleground. (FHA- didn’t contemplate trans rights. Massachusetts has passed Trans rights, but we are not sure yet how it will play out under FHA in massachustts)

Familial Status- Do you have kids or are you single, are you married, are you married to the person who you want to move in with.

National Origin- If You are not from the United States. You cannot be discriminated against based on what country you are from, or what country your parents or grandparents are from.

handicapped or disability, they must allow reasonable modification. So handicapped is also protected under the Fair Housing Act . Landlords must allow reasonable modification…Two afford such person equal opportunity to use an enjoy the dwelling (a reasonable modification is a huge has too many factors to discuss)

Question 38

FHA Law from the book, it is long

Answer 38

Fair Housing Act of 1968 (Fair Housing Act of 1968 (we’ll do a little bit with the Civil Rights Act), but these were part of a landlord tenant revolution in the late 50s, 60s, early 70s. tenants went from having no rights, basically. These laws make sure people were living in habitable spaces and that everyone had the right to an apartment or a place to live.)

To refuse to sell or rent after the making of a bonafide offer, or two refused to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, four in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status (kids, single,,married or are you moving in with your married partner), or national origin . (FHA did not comtemplate trans) MASS has passed trans rights

To make , print , or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the seal or rental of a dwelling indicates in preference, limitation, more discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or intention to make any such preference, limitation , or discrimination …

(f)(1) To discriminate in the sale or rental, or two otherwise make unavailable or deny, a dwelling to a buyer or renter because of a handicap of —

that person …

(3) For the purpose of this subsection, discrimination includes —

a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that rental, the landlord may … Condition permission for a modification on the renter agreement to restore the interior of the premise to the condition that existed before the modification , reasonable wear and tear expected ;

a refusal to make reasonable accommodation in rules, policies, practices or services when such accommodations may be necessary to afford such person equal opportunity to use an enjoy a dwelling …

Question 39

FHA when you can exclude

Answer 39

has right to exclude except a class of protected reason, if you are in protected class and excluded for the non protected class reason was why the person was excluded- the landlord does not like left handed people

Question 40

can i squeeze ten people in a 1 bedroom apartment?

Answer 40

the number of people can be withheld and apartment,

you cannot squeeze 8 people in 2 room apartment, habitability questions, look at housing code

Question 41

FHA Proima facia case

Answer 41

How do you prove a prima facie case of discrimination under Fair Housing Act? (FACTORS test)

1. That he is a member of a protected class and defendants knew or suspected he was;
2. then he applied for and was qualified to rent the property in question; (many landlords will not give them and application, so they can say the D never applied for the housing)
3. the defendants rejected his application ; (
4. that the property remained available thereafter . Plaintiff must provide sufficient evidence to show that he was “ rejected under circumstances which give rise to in inference of unlawful discrimination.” Texas Department of community affairs V. Burdine.. 450 US 248 , 253)
5. If you meet all of those hurdles. and are rejected under circumstances that give rise to an inference of unlawful discrimination
6. The burden shifts to D.
7. The defendants need to articulate some legitimate, nondiscriminatory reason for their rejection of the plaintiffs application. If defendants satisfy this burden ,

7. IF PROVEN, BURDEN SHIFTS BACK TO P TO REBUT

1. show either that defendants reasons are pretext (the reason from D was bullcrap)

OR

1. plaintiff must or that material facts are disputed, this will precluding summary judgment (and allow for a trial)

Question 42

What are the four requirements for constructive eviction?

Answer 42

What are the four requirements for constructive eviction? (You can still bring constructive eviction for a residential client, but there are better options.)

1. Wrongful conduct
2. By the landlord (fidelity mutual life)
3. Substantially interferes with tenants right (how much is substantial)
4. Tenants abandon in a reasonable amount of time. (The Goldilocks elements.You need to give your landlord enough time to fix whatever the problem is, but you can’t give them too much time or you violate the fourth element.)

Question 43

how to build a Prima Facia Case of retaliatory eviction (3 Steps):

Answer 43

1. first thing the tenant wants to do is come up with evidence that there was a complaint within six months.
2. second step is the landlord has to prove evidence of legitimate non retaliatory conduct.
3. step three is if the landlord can prove that there is a reason a non retaliatory reason for the eviction raising the rent or decreased services, then the plaintiff has to show that that’s the excuse was just pretext (bullshit), then the plaintiff,

Question 44

duty to mitigate hypos

Answer 44

Hypos pg. 517

tenant T enters into a two year lease with landlord for a studio apartment on the fourth floor, of a 20 unit complex agreeing to pay $1,000 a month, one year later T abandons under the sommer approach has landlord L acted appropriately to mitigate her damages.

Showing T’s unit last?
This is a “maybe answer.” Sommer requires the landlord to

Treat the vacant apartment, as if it’s any other vacant apartment. If the vacant apartment is literally the last one. They reach, that is okay, if LL is purposely showing it last then that is not ok.

LL puts a sign in the window of Lease units, the sign is two feet tall, three feet wide. It read reads for rents it a telephone number. No one comes to look at the apartments?

NO! because it’s on the fourth floor of the apartment building. So it would be pretty hard to see that.

LL hires a real estate broker to find tenants for all of her bacon departments including t’s unit, the broker finds v. Who wants to rent to department. The offers to pay $900 a month, remember that what he was paying was $1,000 a month L refuses. Is this reasonable efforts?

Yes, so this would be reasonable efforts on the part of the landlord! because they got a broker, they actively took an extra Step in order to make this available to people. You do not have to accept a below market offer if you have taken reasonable steps to mitigate. If you take a below market offer you can sue tenant one for the balance.

Question 45

Abandonment “duty to mitigate rules”

Answer 45

new rule: Landlord has a duty to mitigate damages when he seeks to recover rents due to a defaulting tenant”

Question 46

. Prima Facia Case of retaliatory eviction (3 Steps):

for retalitory eviction

Answer 46

1. first thing the tenant wants to do is come up with evidence that there was a complaint within six months or 1 year depending on jurisdiction.
2. second step is the landlord has to prove evidence of legitimate non retaliatory conduct.
3. step three is if the landlord can prove that there is a reason a non retaliatory reason for the eviction raising the rent or decreased services, then the plaintiff has to show that that’s was pretext (LL excuse was bullshit)

do not forget that you can have a claim after the presumption timeframe is up.

Question 47

new rule after Berg v. Wiley for self help eviction.

Answer 47

only lawful means to dispossess as tenant who doesn’t surrender or abandoned of the property was still claims possession, they have to go through judicial process.

both residential and commercial