TRESPASS -the right to exclude and rights of ownership v.

right of access

Elements
-unprivileged (no consent, not justified by necessity or public policy)
-intentional (not to violate, but to be there; must be voluntary) -intrusion
-on property
-possessed by another

remedies
-damages
-nominal: Jacque
-Compensatory: Glavin- balancing for cutting down tress
-Punitive (to deter/punish) Jacques-no actucal damage, but reprehensible, duty of trespasser to compensate
for damage done
-injunction/enjoinment
-ejectment (if a squatter)
-declaratory judgment

rules
-use property so as not to injure others rights (sic utere tuo ut alienum non laedas)
-SCOTUS: there is an absolute right to exclude, esp. regarding free speech (Lloyd)
-NJ: states can grant more rights re: free speech on private property (NJ Coalition) -public policy may trump this
right (State v Shack)
-right to exclude may be subject to reasonableness (Uston, Schmid)
-more open to the public, more difficult to exclude people (Marsh

cases (most rights to least rights to exclude)

-Lloyd v Tanner (SCOTUS): free speech not protected by Constitution on private property, concern that forcing
businesses open would be a taking, control
-followed by United Food/AFL-CIO; Hudgens v NLRB
-Madden v Queens Co: absolute right to exclude anyone, even arbitrarily
-Dale v. Boy Scouts (SCOTUS): limits freedom of association
-Uston, Schmid: reasonableness
-State v Shack: limited by public policy
-NJ Coalition: NJ extended rights beyond Lloyd
-Marsh v Alabama: company owned town is a public place

Public policy limits:

Shack (for welfare of people who wouldn’t get access any other way)
Magadini- Necessity defense to trespass (for homeless man)
-D is entitled to a necessity defense to trespass instructions if
1. There s a clear and imminent danger
2. There's a reasonable expectation that the entry on property will abate the danger
3. There's no legal alternative that will be effective in abating the danger
4. The legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at
issue.
Property open to the public limits/Public accommodation (CL)
Uston, Schmid: PA laws apply to ALL places (minority view), no right to exclude unreasonably
Brooks: (maj. View) -only innkeepers and common carriers must provide right of reasonable access to
public.all other places open to the public have unlimited power to exclude under CL
Discrimination and Access to Property open to public (statutory test CRA of 1964)
Dale-sues BSA under state PA laws, its similar to a summer camp/BSA-it’s a priv. club, BSA wins, says its
against their freedom of expressive assoc.
 Free Speech Access to Public/Private Prop
Marsh-fed.; company holds title, in balancing test 1stA always wins
Logan-extends marsh, shopping center funct. Equivalent to building block, 1A wins/but picketing directly related
to center’s purpose
Lloyd-fed. where line is drawn, no unrelated 1A right
NJ Coalition- state; mall are now social areas, 1A wins but limited, mall can regulate time/space/etc., Schmid
factors
Adverse Possession=Test: actual possession; open and notorious; exclusive; continuous; adverse/hostile (3
variations, obj. is maj.=lacked express permission); for the statutory period/transforms trespassers into owners
Brown: “tacking” doctrine, tackers must be in privity/purport to transfer title
Nome: actual use/community case, got AP and potentially prescriptive easment
Prescriptive Easements: same as AP -exclusive +[acquiescence of owners]
Actual (limited) use; open and notorious; in which the record owner knew about; need no be exclusive;
adverse/hostile; for the statuaroy period
Comm. Feed Store: use of gravel lot, exact parameters of easement not required, acq.can mean no permission

Nuisance and Zoning- the right to use and enjoy your property
-substantial and unreasonable interference with use and enjoyment of land
-Consider nature of land, social utility, impracticality of harm, sensitive Π, coming to nuisance
-consider difference with trespass (invasion of possession) and negligence (unreasonable conduct)
-public nuisance: unreasonable interference with public health/morals/peace

Pendoley: residents came to nuisance, piggery had to go away.

Honeywell: lack of intent to injure doesn’t bar claim, balance harm w/ social utility (10 factor test box on pg. 348-9)
Jost: gas hurt vegetation; balancing test not appr. For damages, use RIGHTS based approach
Boomer: UTILIT. appr., private utlility polluting landsdamages
Spur: public nuisance (interference w/ a common right/public health/safety, anyone affected can bring case), smell
from feed lot,  purchased injunction
Interfreence w/ light and Air
no absolute right to light and air (see Prah exception for public policy arguments)
-Cujus est solum, ejus est usque ad coelum et ad inferos: “the owner of land owns up to the sky and down to the
center of the earth.” Implies a right to build as high as one wishes (no negative easements)
-doctrine of ancient lights allowed prescriptive rights to sunlight, not adopted by US to allow development

Fontainebleau: as long as offending structure serves a useful/beneficial purpose (even if also built out of spite),
aggrieved party has no claim; sic utere only means don’t injure lawful rights of another
Prah v. Maretti: public policy reasons to no longer consider sunlight an aesthetic enjoyment, remanded to hold ∆ to
reasonableness standard (dissent: Π is sensitive, obligation to protect investment)

Remedies:
-dismissal of complaint (∆ wins, Π must bargain out of court to obtain relief)
-damages: compensation for harm already done (∆ continues if willing to pay)
-injunction: ∆ must stop doing activity (∆ must bargain for right to continue outside of court) -purchased injunction:
Π may be asked to compensate for ∆’s financial loss from injunction
-strict liability: ∆ has absolute right activity and injunction woul

Land use and regulation-doctrines that protect property owners from newly enacted zoning regs.

Takings- the right to maintain ownership of your property

Elements:
1) taking
2) for the public use (SCOUTS some public policy)
3. Without just compensation

police power: when the state acts within the legitimate interest of police power, infringement on private property is
damnum absque injuria – damage without redress
eminent domain power: power to take or condemn private power, paying owner just compensation, when property
is then transferred to some use designed to further the public welfare (Penn Coal)
spot zoning: where land use decisions arbitrarily single out a particular parcel for less favorable treatment than
surrounding parcels

per se test
1) has all economic value been lost?
2) is there a permanent physical invasion?

ad hoc (Penn Central) test

1) character of government action
2) protection of reasonable, investment-backed expectations
3) economic impact of the regulation on the particular owner (weigh private/public interests)

regulatory taking vs. legitimate gov’t use

-efficiency: weigh gains from public project against cost (Kelo)
-consider costs of settlement, “demoralization costs” if victims think no compensation is unjust -distributive justice:
whether regulation causes a loss that individual should bear as a member of society for the good of the community
as a whole

Two overarching categories when gov. says “I’m taking/regulating your property”

Emminent Domain
Penn Coal v. Mahon: eminent domain; Sct limits what states can take w/o paying just compensation here statute
confers private a benefit=a taking

-Village of Euclid: 75% loss of economic value not a taking; an ordinance that serves a legitimate public interest
and thus does not unconstitutionally deprive pl. of protected property rights under 14 thA despite subs. Dimunition in
land.
PRIOR NONCONFORMING USE
Belleville v. Parillo (NJ 1980): Parillo’s was a restaurant prior to zoning ordinance that made it residential, allowed
to stay until it makes renovations to become a disco. Nonconforming uses are LIMITED, courts like to make them
conform as soon as possible, against changing that use (even amount of time that something is allowed to be a
nonconforming use can be too long)
-Stone: VESTED RIGHTS doctrine; court applies Paaske factors (vested right=1. Subst. investment + building
materials on land)

Regulatory Takings
AD HOC takings
Penn Central-government actions that are characterized as acquisitions of resources to permit or facilitate uniquely
public functions are often been held as takings.
-NO TAKING by showing there has been a denial of ability to exploit a property interest heretofore believed
available for development, diminution in property value alone is not a taking
-landmark laws are not spot zoning, they can still sell air rights and can build on other buildings -DISSENT:
relatively few buildings separated from one another, are singled out and treated differently from surround buildings,
no reciprocity or common benefits flowing to/from property

PER SE takings-physical invasions

PruneYard (US 1980): CA SC interpreted state constitution to entitle citizen to exercise free expression on private
property (more rights than granted in Lloyd). Not every government action that causes an injury is a taking. Dissent:
gov’t is limited, cannot abolish rights to exclude, violates 5 th Amendment. Concurring: state can’t force a person to
affirm belief he doesn’t hold.
Loretto (US 1982): NY statute provides that landlord must permit installing of cable in a building; Loretto has
purchased building whereby previous owner granted such permission; holds that it is a taking no matter how small;
permanent physical intrusions by government are a taking to the extent of the occupation, without regard to whether
the action achieves an important public benefit
-denies owner right to posses occupied space
-no power to exclude from possession/use of that space
-denies owner power to control use of property
-qualitatively more severe than regulation of use of property

DEPRIVATION OF ALL ECONOMICALLY VIABLE USE

LUCAS (1992): Per se taking, 5th amendment violated when land use regulation does not substantially advance
legitimate state interests OR denies an owner all use of land. If state seeks to sustain a regulation that deprives all
viable use of land but wants to avoid compensation, must show that prohibited use of land was not part of owner’s
title anyway (nuclear facility on fault line) . EXCEPTION if use is a common law nuisance
PALAZZOLO (2001): case discusses what the denominator is when determining whether all economically viable
use has been lost (Π will argue for fraction, court more likely to consider the whole). The fact that the owner has
notice of a regulation upon the purchase of a parcel does not bar a takings claim (would absolve state from
compensating for unreasonable statutes)
TAHOE (2002): temporary moratorium is not a per se taking, only a 100% diminution in value can be a taking,
everything else is subject to the ad hoc test

PUBLIC USE
KELO (2005): state may transfer property from one private party to another if future use by public is the purpose of
the taking. Broad deference to legislative determination of public use. Promoting economic developing is a long
accepted function of government, even if land isn’t blighted. Thomas says public use=public use. O’Connor: econ.
Dev. Only ok if area is blighted. Once public purpose is determined, legislature can decide amount and character of
land to be used.

Rights and Duties of Landlords and Tenants

terms
HOAS: created by developer filing declaration prior to sale of first lot, enforces covenants, has bylaws condos: units
owned in fee simple, common areas collectively, creation/enforcement similar to HOA coops: entire building owned
by nonprofit corp, units leased, shared mortgage by all

HOAs and CONDOS

rules
-balance importance of HOA/condo rules with importance of interest infringed upon (reasonable?) -owners must
give up degree of freedom of choice otherwise enjoyed by privately owned property -racially discriminatory
covenants not allowed (judicial enforcement is state action, violates USCon)
Licenses: generally are revocable at will of owner, except when reliance/investment has occurred Express
easements:
-Appurtenant: connected to the actual parcel, runs with the land (Green v. Lupo)
-In gross: connected to person, may or may not be transferrable depending on grantor intent (Green) -Exclusive &
apportionable: usually in commercial situations, grantor gives up right (Cable) -Modifications: only to extent that
follows grantor’s intent, servient has undue burden claim (Cox) Implied easements (equitable exceptions to SOF)
-Prior use: easement reasonably necessary for use/enjoyment of dominant estate from previously unified parcels
(Granite Properties)think easements by reservation or by grant
-By necessity: grantor impliedly conveys/reserves that which is necessary to put property to beneficial use in spite of
express provision (Finn)
-Prescriptive easement: fulfilled by adverse possession elements (Community Feed)
-By estoppel: license granted leads to investment and reliance upon continued access (Holbrook)

Landlord/tenant
Landlords rights=receive rent, premises returned intact, regain possession
Landlord’s remedies to breach: sue for possession (to evict); via ejectment lawsuit (drawn-out); summary process
(supposed to be fast); cannt use self-help

Tenant’s Rights
Covenant of Quiet enjoyment (express/implied) which is protected via doctrine of actual and constructive eviction
-occurs when landlord or another tenant subst. interferes with use and enjoyment of (all of portion) of the prop.
-constructive eviction=where actions are functional equiv of barring tenant from the premises
Minjak

Warranty of Habitability (express/implied) physical conditions of the premises

Javins
can this be waived?

Tenant’s Remedies=rescind/repudiate lease (move out before the end of the term); withhold rent; rent abtetment
(pay only a portion); repair and deduct; sue landlord to bring into compliance with housing code;sue for damages or
injunction (comp. and pun.); admin. Remedies (get local housing inspector there); criminal penalties

Dividing up ownership
Tennancy in Common-can own diff fract., survivor does not inherit dying tenant’s share, can transfer interest upon
death, default form
-To A and B
Joint Tennancy-cant transfer/devise interest upon death, must receive at same time and in same title
right of survivorship: when one dies, interest is automatically transferred to the other
- Traditionally, JTs could only be created if they shared the four unities of TIME, TITLE, INTEREST, and
POSSESSION.
-To A and B as joint tenants with rights of survivorship (MUST BE expressly created b/c its not the default)
-if JT sell property during life, this destroys joint tenancy
-Joint tenancy with indestructible right of survivorship? (cannot be destroyed)
make a life estate with a contingent remainder: to A and B for the joint lives with a remainder in A if A survives B,
and with a remainder in B if B survives A (sale by A or B doesn’t sever JT)
Tenancy by the entirety, its like JT+
-co-owners each has the right to posess entire parcel, only for legally married couples (including same sex),
indestrcutable right of survivorship/cant be unilaterally destroyed, cannot be sold/etc without consent of the other
spouse, creditors can’t attach TbyE property to satisfy debt of one spouse (Sawada)

Obligations of Coowners: right to posess entire parcel with compensating other (ansent ouster)
Actual Ouster=aff. Act by which one co-owner wrongfully excludes other co-owners from property
Constructive Ouster=when the realitites of the property prevent a co-owner from sharing occupancy
fault
need
Olivas-husband and wife were tenants in common, divorced and husband moved out
Carr-father and son own farm as TIC
Tenhet-
O’Bryan=is MD degree joint marital property?

EASEMENTS/LICENSES
Licenses: generally are revocable at will of owner, except when reliance/investment has occurred
Express easements:
-Appurtenant: connected to the actual parcel, runs with the land (Green v. Lupo)
-In gross: connected to person, may or may not be transferrable depending on grantor intent (Green) -Exclusive &
apportionable: usually in commercial situations, grantor gives up right (Cable) -Modifications: only to extent that
follows grantor’s intent, servient has undue burden claim (Cox)
Implied easements (equitable exceptions to SOF)
-Prior use: easement reasonably necessary for use/enjoyment of dominant estate from previously unified parcels
(Granite Properties)think easements by reservation or by grant
-By necessity: grantor impliedly conveys/reserves that which is necessary to put property to beneficial use in spite of
express provision (Finn)
-Prescriptive easement: fulfilled by adverse possession elements (Community Feed)
-By estoppel: license granted leads to investment and reliance upon continued access (Holbrook)

TYPES OF NOTICE:
Actual: you are told about it
Inquiry: you have asked or should have asked about it, investigated in local registry of deeds Constructive: you
can see it for yourself

Trademark infringement of the internet-symbolize goodwill and protect consumer from

product confusion. More distinctive=more protection from infringement.
Federal TM codified in Lanham Act
Acquire rights to use TM by 1) the first to use, or 2) the first to register BUT TM can’t be
immoral/scandalous (15 USC 1052a)

-1125a TM infringement (likely to cause confusion)

1) D possesses a mark
2) D used the Mark
3) D’s use of the mark occurred “in commerce”
4) D’s used mark in connection with the sale, offering for sale, dist. or advertising of goods and
services
5) D used the mark in a manner likely to confuse consumers

Non-infringing Parody Defense

Netscape
playboy-7/8 factors for likelihood of confusion
PETA
Falwell
-1125c TM dilution of famous mark (lessening of ability to identify, regardless of likelihood of
confusion)
blurring=use of P’s mark by D to identify non-competing goods that dilute the selling power of a
mark (NIKE bikes, TYLENOL snowboards etc)
tarnishment= P’s mark weakened through negative or unsavory association (ben and cherry’s
porn video, enjoy COKaine)
-remedy: generally inj. Relief
1) P owns famous mark
2) D made commercial use in commerce of mark
3) D’s use causes dilution (blurring/tarnshiment)
unless:
-fair use in comparative comm. Advertising
-noncommercial use of mark (speech must do more than propose a commercial transaaction)
-news reporting/commentary

Defense to TM dulition:
(3)The following shall not be actionable as dilution...
(A)Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of
a famous mark by another person other than as a designation of source for the person's own
goods or services, including use in connection with-
(i)advertising or promotion that permits consumers to compare goods or services; or
(ii)identifying and parodying, criticizing, or commenting upon the famous mark owner or the
goods or services of the famous mark owner.
(B)All forms of news reporting and news commentary.
(C)Any noncommercial use of a mark

Nominative use defense: 1) product must not be readily identifiable without the use of TM; 2)
only so much of the mark may be used as is reasonably nec. To identify the product; 3) D must
do nothing that would suggest sponsorship/endorsement by the mark holder

TM Dilution
Matell

Copyright (direct) Infringement- creative works, works of authorship 102a

-right inhere automatically, doesn’t extend to the ideas or facts embodies in such works
1) P owns a valid copyright
2) D actually copied protectable elements of P’s work
-Copying may be inferred by the substantial similarity y between D and P’s work

Fair Use Defense/Limitations 107 (1st A overtones, criticism, comment, reporting, teaching is
not infringement)
factors:
1) purpose and character of use, including whether such use is commercial or is for nonprofit
educational purposes
2) the nature of the copyrighted work
3) the amt and substantiality of the portion used in relation to the copyrighted works as a whole
4) the effect of the use upon the potential market for or value of the copyrighted work

Campbell v. Acuf-Rose-pretty woman song

Contrib. Infringement- when it is just to hold one ind./entity accountable for the copyright
infringing actions of another.
1) Where D has knowledge of infringement and
2) materially contributes to it

Fair use defense of unauthorized uses= same as above

UCS v. Sony- (defense/safe harbor)1. To make available “dual use tehcnologies” that are 2.
capable of commercially sig./substantial noninfringing uses. If yes then mere manufacture or sale
is not enough to constitute contributory infringement.
Metro-Goldwyn v. Grokster-evidence of promoting infringement/inducement, so sony defense
not applicable

Publicity Right-right to control commercial use of name, image, likenes, voice etc
-exclusively matter of state law
MLK

Same Fair Use Defense