Exceptions to Right to Exclude Flashcards
1
Q
Exceptions to Right to Exclude
A
Five main ones:
- necessity
- public accommodations laws
- public policy
- anti-discrimination
- custom
2
Q
Necessity
A
- major common law exception to the right to exclude
- Ploof v. Putnam
- justifies entries onto land + interferences w/ personal property that would otherwise have been trespass
3
Q
Ploof v. Putnam - Facts
A
- Ploofs are sailing on Lake Champlain when sudden + violent storm arises -> to save lives + their ship, Ploofs moored ship to Putnam’s dock -> his servant unmoored it -> Ploofs’ boat gets destroyed + family tossed into lake
4
Q
Ploof v. Putnam - Decision
A
- court held that plaintiffs’ claim of necessity negated trespass liability + they could sue dock owner for trespass -> notion that they have some sort of right to the dock (possibly right to enter, at least right to to have forced used against them
5
Q
Necessity - Situations Encompassed in the Doctrine
A
Commonality: transaction either not possible or not worthwhile
- natural disasters
- fleeing from assailants
- wandering munching animals
- rescue of property
6
Q
Custom
A
- some norms operate outside the law (ex: Chicago snow parking), others treated as law
7
Q
Blackstone’s Set of Requirements for Enforceable Customary Rights
A
- antiquity
- continuity
- peaceable use (free from dispute)
- certainty
- reasonableness
- compulsoriness
- consistency
8
Q
US Interpretations of Blackstone’s Custom Criteria
A
- antiquity (interpreted as longstanding use in US)
- certainty (means judges can find something doesn’t bind outsiders if would require lot of expertise)
- reasonableness (judges have discretion to determine substantive merit of a custom
- compulsoriness (obligatory - treated as binding)
- consistency (not repugnant or inconsistent w/ the law)
9
Q
Customs and Access to Land
A
- in many areas, the law provides for a default license to hunt on unimproved, uncultivated, unenclosed land
- License can be overcome by posting
10
Q
Contemporary US Custom Issues
A
- off-road vehicle use on federal land
- access to beaches
11
Q
Smith v. James
A
- custom case in a Hopi court
basically, there’s a land dispute between family members and they’re arguing for applicability of different sets of customs - court ultimately says should grant a new trial + hearing b/c procedural error - before there can be a trial-like fact-finding on the particular case, should have a hearing w/ witnesses from the village to determine what the custom is
12
Q
Public Policy
A
- owner sovereignty sometimes required to give way to public policy
- most general exception to right to exclude
- means right to exclude always subject to a balancing test in which competing social interests must be weighed
13
Q
State v. Shack - Facts
A
- farmer invoked law of criminal trespass to exclude two aid workers who wanted to consult unsupervised w/ migrant farm workers temporarily living on the farmer’s land
14
Q
State v. Shack - Holding
A
- NJ Supreme Court, noting that property serves human values, held owner’s right to exclude did not go this far - owner could not use law of trespass to isolate the workers
- balanced right to exclude against interests of migrant workers in maintaining contacts w/ the outside world
15
Q
State v. Shack - Categorical vs. Ad Hoc
A
Decision can be read in two ways:
- categorical exception - carving out from the exclusion right a right of access for aid workers seeking to visit migrant workers required to live on a farmer’s land while working there
- case-by-case - court if asked will balance interest of the parties in order to decide whether exclusion or access is more important
16
Q
Public Accommodations
A
- law distinguishes between property not open to the public (homes, factories, businesses, etc.) + property that offers itself as “public accommodations”
- owners of public accommodations have much more qualified right to exclude -> subject to a general duty of nondiscrimination among customers (must serve on first-come first-serve basis) + must charge only reasonable rates for their services
17
Q
Duties Under Public Accommodations
A
Two Key Duties:
- must serve everyone as long as service is available (would need to show full/would interfere w/ quality of service to refuse)
- must charge “reasonable” prices
18
Q
Public Accommodations and the Civil Rights Act
A
- common law history eventually focused on common carriers + inns
- Title II of Civil Rights Act adopts much broader definition - adds restaurants, movie theaters, theaters, concert halls, sports arena, + other places of exhibition or entertainment
19
Q
Anti-discrimination Law - Goals in Housing Context
A
- expand opportunities
- prevent dignitary + emotional harm (idea that being refused housing can be emotional)
- prevent message of subordination (ex: stringent reqs on advertising in Fair Housing Act)
20
Q
Anti-discrimination Law - Realm Not Open to Public
A
- there are significant restrictions on right to exclude based on race, gender, religion, national origin, familial status, disability, marital status, + sexual orientation
- BUT there’s technically also still a lot of owner sovereignty that’s immune from anti-discrimination duties
21
Q
Shelley v. Kraemer - Facts
A
- deals w/ racially restrictive covenants
- Shelley received warranty deed from Fitzgerald -> respondents (owners of the property subject to the covenants) sued to restrain the Shelleys from taking possession + to divest title from them + revest it in immediate grantor
22
Q
Shelley v. Kraemer - Procedural Posture
A
- trial court denies relief b/c not all required signatures had been obtained in order for the covenants to be enforced
- Missouri Supreme Court reverses + orders enforcement, denying claims of unconstitutionality
23
Q
Shelley v. Kraemer - Holding
A
- Fourteenth Amendment (in particular equal protection) bars judicial enforcement of a private agreement that’s discriminatory b/c it would involve state action (even if it doesn’t reach private discrimination as being a non-state action)
24
Q
Barrows v. Jackson
A
- SCOTUS extended the Shelley v. Kraemer holding to judicial actions seeking damages for breach of such a covenant
25
Q
Fair Housing Act
A
- originally enacted in 1968
- prohibits a range of discriminatory behaviors against members of enumerated protected classes in the housing field, w/ certain exceptions, + has been amended over the yrs to include additional protected classes (ex: disabled)
26
Q
Fair Housing Act - Main Provisions
A
Aimed at discrimination on basis of race, color, religion, sex, national origin, or familial status in:
- availability (3604a)
- terms and conditions (3604b)
- advertising (3604c)
- lying about availability (3604d)
- blockbusting (3604e)
- 3604 f outlines anti- discrimination provisions relating to availability + terms + conditions w/ respect to disabilities
27
Q
Fair Housing Act - Exceptions to 3604
A
- exceptions don’t apply to the advertising criterion of 3604
Two exceptions: - sale or rental of single-family house by owner
- “Mrs. Murphy” exception for building w/ no more than four units, one of which the owner lives in
28
Q
Fair Housing Act of San Fernando Valley v. Roomate.com - Facts
A
- Roommate.com actively solicits info on gender preference in listings
- q arises whether this counts as a violation of the advertising provision of the FHA
29
Q
Fair Housing Act of San Fernando Valley v. Roomate.com - Decision + Reasoning
A
- court says roommate selection not subject to FHA
- interprets “dwelling” (defined broadly in the act as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families”) to mean a living unit w/ the elements generally assoc. w/ a family residence -> roommates not covered b/c they share these elements w/ non-family (ie. bathroom, kitchen, living room)
- also discuss intimacy + privacy involved in roommate relationship
