• Jacque v. Steenberg Homes
  • What court issued the opinion in Steenberg? By citation conventions, if the state is all that is mentioned in the parenthentical (along with the date), it is the state’s highest court (e.g., “(Wis. 1997)”). Usually the state’s highest court is called the Supreme Court, though there are exceptions. If the parenthetical said, in contrast, “Wis. App.,” it would be the intermediate appellate court.
  • What are the facts of the case?
  • What is the procedural history of the case?
    • What claim did the Jacques present?
    • What did the jury hold?
    • What did the trial court hold?
    • What did the appeals court hold?
    • What did the Supreme Court hold?
  • Why did the Jacques deny permission to Steenberg Homes to drive across their property? Was it reasonable?
  • What if the only way (as opposed to the cheapest and most convenient way) to deliver the mobile home in the winter was to drive across their property?
  • What if the driver for Steenberg Homes had simply driven across the Jacques’ property without asking permission?
  • What if the driver for Steenberg Homes had generally avoided the Jacques’ property, but had accidentally tread over the edge by a few feet?
  • Make sure you understand the general rule about the award of punitive damages where compensatory damages are nominal, and why Wisconsin has that rule. What purpose does it serve? Do you agree with the rule?
  • How did the lower courts apply the general rule to this case? What did the Supreme Court do with the rule -- in general, and in this case?
  • Is there a way the court could have concluded that punitive damages ought to be available in trespass cases where the compensatory damages are nominal, yet still have upheld the appellate court ruling? Another way to put the question is this: Even if you agree with the ruling of the Wisconsin Supreme Court as a matter of policy, what about the way it was reached might be unfair to Steenberg Homes in this case? If you were counsel for Steenberg Homes in the case below, and knew that there really wasn’t any damage to the Jacques’ property, how much time would you have invested in preparing for the case?
  • Suppose, after Steenberg, Alberto falsely states that Janelle is a racist, intending to harm her reputation. Janelle sues for defamation. The jury awards Janelle $1 in compensatory damages and $50,000 in punitive damages. Is Steenberg precedent for upholding the award of punitive damages? Is trespass worse than libel?
  • Do you agree with the holding in Steenberg? Why or why not?
  • In light of the qualification in Jacque v. Steenberg about not using property so as to invade the rights of others, does that decision really adopt an absolute right to exclude?

• State v. Shack:
  • What are the facts of State v. Shack?
  • What is the procedural history of the case? What was the charge? Note that it was criminal. Who prosecuted it? What was the result in the lower courts? What did the New Jersey Supreme Court hold?
  • Note: the statute under which the defendants were prosecuted (quoted by the Court, but not in the excerpts provided by the casebook) provided:

    “Any person who trespasses on any lands ... after being forbidden so to trespass by the owner ... is a disorderly person and shall be punished by a fine of not more than $50.”

    How is this statute relevant to the case?
  • Would a representative of a private charity giving free medical assistance have access to a migrant farm in New Jersey? (For the questions on the scope of the holding, don’t forget to read the additional excerpts of the case at Supp. 2.
  • Would someone selling TVs have access to a migrant farm in New Jersey? A nun handing out union literature?
  • Would reporters have access to a migrant farm in New Jersey?
  • What restrictions might be placed on those who do have access?
  • Could Tedesco require that all employees waive any rights they might have under State v. Shack as a condition of working there?
  • Do you agree with the holding in State v. Shack? Why or why not? Suppose, contrary to fact, that Steenberg had been decided by the New Jersey Supreme Court some years earlier than the facts of State v. Shack. To come out as we know it did in Shack, would the New Jersey Supreme Court have had to overrule Steenberg?
  • Which institution -- the courts or the legislature -- is best suited to decide the issues posed in Shack? Compare the two institutions in terms of:
    • Institutional competence: how well they make the rules. For example, would a legislature make clearer rules than the courts do?
    • Legitimacy: why shouldn’t the issue in Shack be decided by an elected body instead of a court?
    • Is there a sense in which the right to exclude is absolute in New Jersey even after State v. Shack?

With respect to Section I.A.2.a, consider:

• What does the CROW Act of 2000 provide? How is it similar to rights in other European countries? How is it different from what Scottish law provides?
• What bill did the British parliament enact in 2022? (See Supp. 18 What other bill was proposed (“tabled” -- note that in the UK, “tabling” a bill means proposing it, not (as in the US), withdrawing it from consideration) in 2022? How did the fundamental aims of the 2022 bills (one enacted; one proposed) differ from each other? Were either or both consistent with the CROW Act?
• What criticisms do Right to Roam advocates have of the CROW Act in relation to:
  • The nature of the activities that are permitted by the public on private property?
  • The process of getting a roaming path in the registry
  • The location of where most most of the paths protected under the CROW Act are located in England?
• What is the current issue in relation to Dartmoor National Park? What Act does that dispute involve?
• Should landowners have an absolute right to exclude others? Why or why not? What does the CROW Act suggest? Is the CROW Act consistent with the European Convention on Human Rights (Art. 8, and Art. 1 of Prot. No. 1)?

With respect to Section I.A.2.b (Iron Bar Holdings LLC case):

• Note: you need not read the court’s discussion about whether the Mackay case remains binding law in the Tenth Circuit. Assume that the court is correct in concluding that it is. This means you should skip the court’s opinion from Supp. 31 (right-hand column, first paragraph (beginning “Mackay has never been expressly overruled ...”) up to the end of Section 2 at Supp. 34. (The discussion of Mackay’s current validity is included only because it is interesting, but it is entirely optional and you are not responsible for it.) Resume reading the opinion from Section 3 (“Determining the Scope of the Relevant Restriction ...”), Supp. 34, through the end of the opinion.
• In what court was the complaint in Iron Bar brought? How is it different from the courts in Shack and Jacque v. Steenberg?
• There were trials in Shack and Jacque. Was there a trial in Iron Bar?
• Make sure you understand what the alleged trespasses were in Iron Bar. Note that there was more than one, and they were not all identical.
• What was the legal basis Iron Bar Holdings asserted in accusing the defendants of trespass? Why did the court discuss air travel? Why was the history of railroad construction in Wyoming relevant? Why was the recent amendment to Wyoming statute § 23-3-305(A2) relevant?
• Is Iron Bar consistent with Shack? With Jacque v. Steenberg?
• Stepping back from the details, compare what the CROW Act provides with the Wyoming statute (Supp. 28), and what the Right to Roam advocates seek in England with what the hunters in Iron Bar sought to achieve in terms of access. How do the U.S. and England compare in terms of rights of access? Which is better, in your view? Why?

With respect to Section I.A.3 (the Florida Migrant Farmworkers Statute):

• What would be the result if the facts set out in State v. Shack took place today in Florida? Would Shack and Tejeras have access to the farm? Under what conditions? What about:
  • a person selling TVs or radios?
  • a sales representative for a vitamins and health supplements?
  • the representative of a private charity giving free medical assistance?
  • a nun handing out union literature?
  • a reporter?
  • a relative of one of the migrant farmworkers, staying with him while he looked for work in the area.
• In the instances above, would those seeking access have a right to go to (a) the fields where the workers work, or (A2) a small common room with a TV in a larger building containing the individual rooms where the farmworkers sleep?
• What is the difference between residential migrant housing and migrant labor camps? Does the difference matter to any of the hypotheticals above?
• Imagine a building on a migrant farm in Florida like those described in the New York Times article at Supp. 1. Smith lives in one of the rooms, and Perez in the second room down on the same side. Smith invites Shack to come by in the evening to give him some legal advice. Though Smith and Shack are talking in a normal voice, Perez complains that their talking is disturbing his peace and quiet in his room. (As the Times article indicates, “[p]rivacy is nil.”) Perez insists that Shack leave immediately. Does he have a right to make Shack leave? Why or why not?
• You are the lawyer for the owner of migrant farm in Florida. He asks you if he could ban any visitor (invited or otherwise) from carrying a firearm on the premises, and require all visitors to go through a metal detector. What do you say?
• If the Florida statute would grant access to Shack and Tejeras (under facts like those set out in State v. Shack), but Tedesco were to deny it, could they file a complaint with the Department of Health? If they did, would the Department be obligated to investigate it? Are there any other forums in which they could seek relief?
• Suppose that after a resident of a migrant labor camp complained to a reporter that the owner was not permitting health care providers and legal services attorneys to visit him at the labor camp, the owner fired him and told him to leave. Would the farm-worker have any recourse? Would it matter if the farmworker had been drinking in his room in violation of a rule (one that was routinely violated without consequence?)
• Is the issue of access to migrant farms better handled by case law or by statute, in your view? Is it possible to generalize?

As to I.B (Relativity of Title), we will discuss the hypotheticals for the questions at Supp. 52, and the facts of Tapscott. Make sure you carefully brief Tapscott. The way the opinion is written makes it very difficult to understand exactly what happened, but you should be able to figure out much more than you might think from a first read. So try your best to figure out the events as well as understanding the court’s holding, because doing the former is crucial to the latter. Only after that should you consult this aid, Briefing Tapscott and Hypotheticals. Don’t read this first; you will deprive yourself of a valuable opportunity to improve your case reading skills.

With respect to Section II.A.1 (Eminent Domain), consider:

• Why should there be any compensation requirement in the case of the exercise of eminent domain? Is it necessary in terms of fairness or social utility to have such a requirement? What would be the measure of “just compensation” in the case of Susette Kelo’s house? Did she receive it?
• Given that there is a just compensation requirement, why should there be a power of eminent domain at all? Why can’t the government just buy property it wants? What problems might arise in acquiring land to construct a highway? Consider the construction of I-95 through Overtown (Supp. 59-61). What about a large military base in an area where there are a number of small farms?
• In Kelo, give some thought to the differing ways you would present the facts as an advocate for Kelo or as an advocate for New London.
• What is the constitutional standard for the exercise of eminent domain? What does “public use” mean, according to the Supreme Court? Do you think the Court has correctly interpreted this constitutional phrase?
• Make sure you understand the significance of the Mill Acts.
• Is it an appropriate function for state and local governments to seek to promote economic development?
• What alternative tests did the lawyers for Kelo propose? Would they have been consistent with Berman and Midkiff?
• Does the majority in Kelo argue that the development at issue there is a good idea and will accomplish its intended purposes? Does it defer to the state and local government’s determination? Who is in the better position to determine whether the project will work? If there is uncertainty, who should make that decision -- the U.S. Supreme Court or New London? Note that this question implicates two distinct issues.
  • Courts versus legislatures: How much should this be left to elected officials (whether legislative or executive)?
  • Federalism: How much should this be left to the federal government (which includes the President, Congress, and the U.S. Supreme Court) versus state or local government (which includes governors, mayors, state and local legislatures, and state courts)?
  Which of the opinions in Kelo is the most deferential to local authority?
• What test did Justice O’Connor propose in her dissent? Would it have been consistent with Berman and Midkiff?
• Note that both Justice O’Connor and Justice Thomas dissented. But they had very different approaches. What approach did Justice Thomas take to the particular question in Kelo? To constitional interpretation in general?
• Justice Thomas argues that allowing the use of eminent domain power as permitted by the majority in Kelo harms poor communities, with the impact falling disproportionately on minorities. If a majority of Justices had voted for Justice Thomas’s opinion, making it the opinion of the Court, would that address the objection he raises?
  • One way to think about this question is to ask whether Benjamin Brown would’ve been allowed to keep his house in Overtown if Justice Thomas’s view had prevailed. (Supp. 59-61).
  • For some additional background, read the Rios article at Supp. 62-65
• What tests did Hathcock (CB 1039) propose? Is the approach Hathcock takes consistent with Berman and Midkiff?
• How would you feel about the ultimate demise of the proposed development if you were a resident or taxpayer in New London? Does that matter to your assessment of the holding in Kelo, or is it irrelevant?
• Suppose Kelo had come out the other way. How would that have affected the possible use eminent domain in Rhode Island in relation to the Station nightclub site? (Supp. 65-66).
• If you were a member of a state legislature, would you vote for a statute limiting the use of eminent domain to cases in which at least one of the following holds:
  • the property is blighted
  • the property will be owned by the government
  • the public will have a legal right to use the property
  Should these requirements apply to all use of eminent domain? Or only where the property is to be transferred from one private party to another? A number of state statutes along this line were in fact approved after Kelo. Why do you suppose Prof. Somin thinks they are ineffective? (CB 1037)

Remember that your response to Practice Question 1 is due on Tuesday, September 3, by 3:00 pm. Please see the Instructions for Practice Question 1 for more details.

We completed our discussion of the material in Section II.A.1 (Eminent Domain) (make sure you review the questions, which you can find here), and then began our discussion of the material in Section II.A.2.a.i (Van Valkenburgh v. Lutz).

With respect to Section II.A.2.a.i (Van Valkenburgh v. Lutz), consider:

• Imagine you are the attorney the Lutzes hired when they were sued in April 1948. You want to explore the possibility of mounting the defense of adverse possession.
  • What elements does the law require you to show? Where do those elements come from: a statute? The common law? Both? To the extent that a New York statute governs, which section(s) applies?
  • What facts would you need to establish -- what questions would you need to ask your clients to help gather the facts? You should be familiar with the details of the facts and be prepared to marshal them in favor of the various elements of adverse possession, while being aware of the arguments opposing counsel could make. It would help you in your preparation to make up a timeline of the events that occurred in:
    • 1912 and soon thereafter
    • 1916
    • 1920
    • 1928
    • 1935
    • 1937
    • 1946
    • 1947
    • 1948
    Note that some of the facts may be in the majority opinion; others, in the dissent. If there are other relevant dates you can add them into the timeline.
• The Van Valkenburgh court doesn’t address the question whether the 1947 tax sale extinguished any adverse possession claim the Lutzes may have had. Should the tax sale have had that effect, in your view? If you were designing a tax sale system, what interests should it wipe out?
• Should the admission by the Lutzes in their 1947 lawsuit that they didn’t own the property (though they claimed to have an easement) have precluded the subsequent invocation of the defense of adverse possession in the April 1948 lawsuit?
• What did Van Valkenburgh hold regarding the relevance of state of mind?
• Note that Section II.A.2.a.v (Children’s Magical Garden) is optional. It arises from an interesting factual situation, and provides another look at the questions of tacking/continuity and claim of right.

We completed our discussion of the material in Section II.A.2.a.i (Van Valkenburgh v. Lutz) (questions above), and then moved on to Section II.A.2.a.iii (Tacking, Disabilities, and Adverse Possession Against Governments).

With respect to Section II.A.2.a.ii (Mannillo v. Gorski), consider:

• What does Mannillo v. Gorski say about the relevance of state of mind to adverse possession law? How does it compare to Van Valkenburgh on that and on its analysis of the “open and notorious” requirement?
• We will also discuss Mannillo in light of the “improving trespasser” doctrines (concerning “innocent improvers” and intentional encroachers) described at CB 98-99 (Note 4). Should the actual title holder to the lot in Ocean Hammock be able to compel the Vosses to remove the house on the title holder’s lot? See Supp. 67. What about getting full ownership of the house for free, as an improvement to the lot? Or getting full ownership of the house for free, but only upon payment to the Vosses of the market value of the house? Assume that both the builder (Keystone) and the surveyor have gone bankrupt and had no insurance. In the Hawaii situation, Supp. 68, why was Anne Reynolds unwilling to accept another identical lot in exchange for hers (on which the developer, Keaau Development Partnership, mistakenly built a home? What is your reaction to the concern expressed by the developer’s attorney that Reynolds might be “trying to exploit PJ Construction’s mistake in order to get money from my client [the developer] and other parties”? What other factors would you want to take into account?

With respect to Section II.A.2.a.iii (Tacking, Disabilities, and Adverse Possession Against Governments), consider:

• We will discuss some hypotheticals relating to tacking and disability:
  • Consider the following sets of events in a state with a 12-year adverse possession statute of limitations. Who would prevail in each situation:
    • First set:
      • 2011: A occupies Blackacre, land belonging to T.
      • 2021: A conveys “all my interest in Blackacre” to B
      • 2024: T sues to eject B.
    • Second set:
      • 2011: A occupies Blackacre, land belonging to T.
      • 2021: B ejects A.
      • 2024: T sues to eject B.
    • Third set:
      • 2011: A occupies Blackacre, land belonging to T.
      • 2021: T sells Blackacre to T₁.
      • 2024: T₁ sues to eject A.
  • Consider the following events. How would they come out under the statute at CB 106?
    • First Scenario:
      • 1990: T is sentenced to 30 year years in prison (and begins serving the sentence).
      • 1991: AP occupies land belonging to T.
      • 2020: T is released from prison.
      • 2024: T sues to eject AP.
    • Second Scenario:
      • 1990: AP occupies land belonging to T.
      • 1991: T is sentenced to 30 year years in prison (and begins serving the sentence).
      • 2021: T is released from prison.
      • 2024: T sues to eject AP.
    • Third scenario
      • 2010: T enlists in army, is sent to Iraq, then Afghanistan, and later back to Iraq.
      • 2011: AP occupies T’s land.
      • 2021: T returns from Iraq, having left the Army.
      • 2024: T sues to eject AP.
  • Should there be a disability exception in an adverse possession statute?

We will discuss the material in Sections II.A.2.a.iv (Howard v. Kunto), II.A.2.b.i (the Florida Adverse Possession Statute), and II.A.2.b.ii (Border Strips).

With respect to Section II.A.2.a.iv (Howard v. Kunto), consider:

• It would be a good idea to draw your own schematic plat of the lots, and in each lot write out the facts of the title (transfers of title and current record ownership).
• Was the Kuntos’ use of the property in Howard v. Kunto “continuous”? What about the camping hypothetical at CB 104 (Question 2)?
• How did the Court of Appeals of Washington deal with the fact that the Kuntos, who claimed adverse possession, had been there only a year? Why did the trial court not count towards the required 10 year period the time that the McCalls, Millers, and other previous occupants had lived on the lot?
• How did the tacking issue in Howard v. Kunto differ from the tacking issues in Section II.A.2.a.iii (see questions above)? In this regard, make sure you understand the Buchanan v. Cassell case, discussed by the court at CB 102-103.
• Rather than deal with adverse possession, why not just hold the surveyor liable for professional malpractice?

With respect Section II.A.2.b.i (the Florida Adverse Possession Statute), consider:

• Imagine a set of facts in Florida in which the would-be adverse possessor did everything the Lutzes did on the triangular parcel of property, and the original title holder to that parcel brought suit to eject the Lutzes in 1946. How would you analyze those facts under the Florida Statute?
• How would you analyze the facts of Howard v. Kunto under the Florida statute?
• Please be prepared to discuss the question at Supp. 86, left hand column (end of note 2) about the 2013 amendment to the statute.

With respect to Section II.A.2.b.ii (Border Strips), consider:

• Be prepared to discuss the questions raised in the readings at Supp. 86-89, and the Seton case (Supp. 90-92, and the questions on it at Supp. 88-89).
• Do you think the law should permit acquisition of border strips through adverse possession?
• Note that even where adverse possession cannot be established with respect to a border strip, other doctrines (discussed at CB 98, Note 3) may apply. Does that affect your answer to the preceding question? Also, do you think that the Florida statute would bar application of these common law doctrines to a contested border strip? Why might it? Why might it not?

We will discuss the material in Section II.A.2.b.iii. In addition, please read the material in Sections II.B.1 (Introduction) and II.B.2.a.i (Caveat Emptor, Duty to Disclose).

With respect to Section II.A.2.b.iii, consider:

• Note that HB 621 went into effect on July 1, 2024, adding § 82.036 to the Florida Statutes.
• What policy does HB 621 adopt relating to the importance of the right to exclude?
• Suppose the facts of the second Hypothetical on the Relativity of Title (Supp. 52) take place today in Florida. Could Leah have the sheriff eject Nigel?
• Suppose the following events take place in Florida:
  • In September 2024, T visits her vacation beach home after having been absent from it for a long time. “I can’t believe the last time I was here was in February 2018,” she thinks to herself as she walks up to the front door, which happens to be unlocked. Upon entering she finds AP in the house, appearing to live there. She confronts AP, telling him she is the owner, and demanding to know what he’s doing there. “You’re not the owner, at least not anymore,” he says. “I am. A friend told me the house had been vacant since February 2017. I checked it out in May of that year, and there was no one here, and I moved in here in June 2017. Haven’t you heard of adverse possession?” T replies, “I don’t know what you’re talking about. I actually spent all of 2017 living here, and January and February 2018.” “Yeah right,” replies AP. “You need to get out now!,” T says. Could T have the sheriff to evict AP?
  • In January 2017, AP comes across a vacant house. AP watches it carefully for months, noticing that no one lives there and that no one is taking care of it. Talking to the neighbors during that period, she comes to learn that the previous owner died in early 2016; apparently the previous owner’s will left the house to his son. The son cleared all of his late father’s belongings out in late 2016 after probate was complete and title transferred to him, but he has a challenging job in Singapore and hasn’t been back since then. AP moves into the house in early July 2017, fulfilling all the requirements of § 95.18 over the next 7 years. In late July 2024, AP visits a lawyer who, after gathering the facts and reviewing the statute, says, “The house is yours. Since you may want to sell it some day, I recommend you bring an action to quiet title. There’s no point in putting this off. I see every indication you will prevail.” AP tells the lawyer she’s leaving for a two-week vacation and would like to postpone any legal action until she gets back. The lawyer agrees to the delay. When she gets back from vacation, she finds that a complete stranger has moved into the house and is living there.
    1. Suppose the complete stranger is the title holder. Does § 82.036 apply? Could AP have the sheriff eject the title holder?
    2. Suppose the complete stranger is someone who noticed the house wasn’t occupied and moved in? Does § 82.036 apply? Could AP have the sheriff eject the stranger?
  • Three years ago, the owner of an apartment building sold it to a developer. The developer then terminated the month-to-month leases of all the tenants and they all moved out. The developer has so far not been successful in gaining the financing needed to build a new apartment building on the site. A year ago, someone broke into the front door of the building. The lobby has become a site for drug users. The developer hasn’t noticed. In July 2024, Oscar, who is currently homeless, moves into the unit he had occupied under a lease before the developer bought the building. In September 2024 the developer finally checks the property and gets the locks repaired, but discovers Oscar living in his old unit. Could the developer have the sheriff eject Oscar under § 82.036?
• Suppose HB 651 had been in effect in the situation described in the articles at Supp. 103 and 105. Would the statute have made a difference?
• What about the Georgia situation at Supp. 53, where a homeowner returned from vacation in 2004 to find a stranger living in her house and claiming she was renting it from the owner. Might the statute have helped the owner? If so, how?
• How necessary are bills like HB 651, in your view?
• What concerns were expressed by opponents of the bill before it was passed? Does the bill adequately address those concerns? (See Supp. 110.)
• Does HB 651 “give police the power to adjudicate whether someone is a legitimate tenant or a squatter” (Supp. 108) in your view? Why or why not?

With respect to Section II.B.1 (Introduction), we will not discuss that material in class, but you should read CB 571-574 for an overview, and look through the Multi-Board Residential Real Estate Contract 5.0 (CB 574-588) to get a general sense of what it covers. We will later go through parts of the contract.

With respect to Section II.B.2.a.i (Caveat Emptor, Duty to Disclose):

• New! You may find this comparison of D2D and CE useful: PowerPoint / pdf
• Consider the following hypotheticals taking place in New York (where Stambovsky was decided). In each, would the seller be liable to the buyer?
  • A buyer purchases a house and, after moving in, discovers that there are termites and that the house has extensive termite damage. The seller said nothing to the buyer about termites before the sale even though the seller in fact had known about them.
  • Before the buyer purchases a house she asks the seller whether there are any termite problems. There are, and the seller knows it, but he says no. After moving in, the buyer discovers that there are termites and that the house has extensive termite damage.
  • What liability would the seller of the rat snake house have to the buyer? (Supp. 112-113)
  • Before the buyer purchases a house with a small tool shed out in the back, she asks the seller whether there are any termite problems. Knowing that both the house and tool shed have extensive termite infestations and damages, the seller says, “there’s a pretty bad termite infestation in the tool shed, I’m afraid.” After moving in, discovers that there are termites in the house and that it has extensive termite damage.
  • A buyer looks at a house, and the seller says, “I love this house - it’s a great place to live, so cozy and peaceful. I love these older homes with their rich history. And we’ve got some great neighbors. The woman next door watches after my kids all the time - she’s great.” The buyer moves in and then finds out that --
    • every night at midnight, freight trains go by and sound horns. The buyer didn’t realize this because a hedge in the back made it hard to see the train tracks, but if you went in the back yard you could see them by peering through the hedges.
    • a violent home invasion took place in the house ten years ago, with several family members shot and seriously wounded.
    • there’s a convicted sex offender living three houses away.
  • We will also discuss the facts of Stambovsky itself.
• Consider the same hypotheticals as above, but taking place in Florida. In addition, consider this: A buyer is looking at a house before the sale. It is pouring rain outside. If the buyer looked inside the hall closet, he would see water dripping through the ceiling -- the result of a bad leak in the roof. The buyer is in a hurry and doesn’t look in that closet. The seller knows about the leak but says nothing. The buyer moves in and discovers the leak. Is the seller liable?
• We will discuss the question at Supp. 117 (party houses).
• Is the “duty to disclose” a duty to disclose material defects the seller knew about, or a duty to disclose material defects the seller knew or should have known about? What are the implications of deciding this one way or the other?
• Which legal standard makes more sense, in your view -- caveat emptor or duty to disclose?

With respect to the material in Section II.B.2.a.ii (Disclosure Statutes), consider:

• A buyer moves into a house and is told by a neighbor that the seller’s partner died of AIDS. The seller said nothing about this. The buyer is upset by the revelation. Would the buyer have a cause of action in Florida for failure to disclose? Massachusetts? Indiana?
• What about disclosure of defects in the underground pipeline connecting a home in Florida to a public sanitary sewer line? See Supp. 136-139 (§ 689.301 and legislative history). Would diclosure alone solve the problem the “Bill Analysis and Fiscal Impact Statement” sets out? What else did SB 150 (which among other things, added § 689.301) seek to accomplish?
• In what ways is Fla. Stat. Ann. § 689.25 better than Mass. Gen. L. Ch. 93 § 114? In what ways is it worse? (Supp. 129)
• Would you recommend to the Florida legislature that it adopt the provisions of Indiana Code. Ann. 32-21-5 (i.e., Chapter 5) and 32-21-6 (i.e., Chapter 6)? Why or why not? (Supp. 130-135)
  • Suppose a home was the site of a meth lab in the past. The current owner, who is selling the house, does not know that. On the other hand, she could with some effort have obtained police records relating to the house. These records would have shown that the house had been the site of a major police raid, because the house was being used as a meth lab. The current owner does not disclose this fact to the buyer. Would the seller be liable?
  • Suppose the owner of a house in Indiana where a horrific and notorious murder took place five years ago knows that the house has serious termite damage. When selling the house, would the owner be required to disclose the termite damage? What provision of the Indiana code would you point to as requiring disclosure? What provision of the Indiana Code would you point to as not requiring disclosure? What should a court hold if the seller does not disclose it?

With respect to Section II.B.2.b (Warranty of Habitability or Quality), we will discuss the McDonald case, and more generally, the arguments for and against imposing a warranty of habitability or quality -- and how it differs from a duty to disclose.

As to Section II.B.2.c, we will go over the Florida Bar Exam problem.

With respect to Section II.B.2.d (Equitable Conversion), we discussed the hypotheticals at Supp. 148-149:

• Keep in mind, as you look through the contract, that many of the sections interrelate, so even if you think one particular section covers a problem you may need to look at others as well.
• Give some thought to whether it would matter under the contract in the casebook if the tool shed is an actual (small) structure built on the premises, or something picked up at Home Depot and put on a concrete slab. Consider also what would happen if a hurricane destroyed all the trees on the lot, and the buyer decided that she no longer wanted to go through with the purchase.

With respect to Section II.B.2.e (Deeds):

• O tells A, “I hereby transfer to you, A, all my right, title and interest in Blackacre, with all the present and future covenants the law recognizes.” Subsequently, O refuses to vacate Blackacre. A sues to eject O. Who would win? Why?
• You need not memorize all the details, but be broadly familiar with the types of deeds: general warranty, special warranty, and quitclaim. If a seller gives a buyer a general warranty deed, is there any need for the buyer to purchase title insurance? (Title insurance policies protect an owner from loss due to defects in title.) Why or why not? Consider both legal and practical issues.
• What is the reason for the requirement that a deed be delivered in order to be effective in transferring title?
• Consider:
  • O gives A a deed that purports to transfer ownership of Blackacre to A. In fact, however, O does not have title to Blackacre. X does.
  • Subsequently X conveys title to Blackacre to O. Who now owns Blackacre?
• The legislative history to Fla. Stat. § 689.29 (Supp. 150-151) shows that the legislature added a specific new disclosure requirement in the sale of real property. Was this approach the best one? Why not, for example, require that conveyance of anything less than full mineral rights be clearly stated in the deed?
• We will discuss the Problems at Supp. 153.

With respect to Sections II.B.3.a (Mortgages (Introduction)) and II.B.3.b (Foreclosure), consider:

• Make sure you understand the historical background of mortgages; the terminology; the changes in the home loan mortgage market in the last quarter century; and how foreclosures work.
• What, according to Murphy, is the duty of the lender in the case of a foreclosure sale?
• What is the difference in remedies between a case involving bad faith and a case involving lack of due diligence? Why the difference?
• How is a fair and reasonable price determined? Is it the same thing as fair market value?
• If you were an attorney for a lender conducting such a sale, what steps would you advise the client to take to show that your client satisfied the duties of good faith and due diligence? What steps could you take that would persuade the court that the price achieved was a fair and reasonable price?

With respect to Section II.B.4.a (Title Recording and Searches), consider:

• How is a title search done in a system with a grantor-grantee index? Make sure you understand how -- if you represented buyer A, who was going to buy a house from the seller O -- you would go about checking to verify that O really owns the house, and that the title is not encumbered by (for example) any easements.
• What lessons might you draw from the U.S. Government Survey?
• Why has the Torrens system not taken hold in the US? Given the inefficiency of the public title recordation system, should it be privatized? Do the problems with MERS suggest that privatization is a bad idea, or that it may be a good idea but needs close regulation? Or that problems may come to light, and can be fixed without regulation? In other words, what is your view on the role of the government versus the private sector in ensuring that we have a reliable system for recording interests in real property?

With respect to Section II.B.4.b (Types of Recording Acts): Read this material carefully, including the material on Parsing Statutes. We will go over it in class, and it will also help you with the Problems (Section II.B.4.c) when we get to them next week.

With respect to Section II.B.4.c (Recording Acts in Action): We will go over Problems 1-5 (Supp. 166). I will post written comments on the problems after we have gone through them in class. It is important to learn to read and apply the statutes on your own first.

Note: I have posted Comments on the Recording Statute problems. These are also available on the Syllabus page under “Books, Supplements, and Recordings of Classes.”

With respect to Section II.B.4.c (Recording Acts in Action): We will go over Problems 1-5 (Supp. 166). As noted, I will post written comments on the problems after we have gone through them in class. It is important to learn to read and apply the statutes on your own first.

With respect to Section II.B.4.e (Inquiry Notice), consider:

• Should a recording of a memorandum of lease give notice as to all the provisions contained in the lease itself? Why or why not?
• Do you think Waldorff, Miller v. Green, and Grose v. Sauvageau were decided correctly? Why or why not? Are they distinguishable?
• How demanding of buyers do you think the application of inquiry notice should be?

With respect to Section III.A.1.a (Types of Concurrent Ownership; Creation and Termination), consider:

• We will go over Problems 1 and 3 at CB 398. Consider how they would come out under common law and under the Florida Stat. § 689.15 (Supp. 210).
• Suppose tenants in common or joint tenants wish to terminate their cotenancy. How may they do so?
• What problems have arisen with “heirs property,” particularly with respect to Black farmers? Consider the reforms set out in the UPHPA, which a number of states have adopted. What do these reforms suggest about the protections afforded co-tenants of property that is not defined under the UPHPA as “heirs property”? This, by the way, is the definition of that term under the UPHPA:
  (5)“Heirs property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
  
  (A) there is no agreement in a record binding all the cotenants which governs the partition of the property;
  (B) one or more of the cotenants acquired title from a relative, whether living or deceased; and
  (C) Any of the following applies:
  
  (i) 20 percent or more of the interests are held by cotenants who are 10 relatives;
  (ii) 20 percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
  (iii) 20 percent or more of the cotenants are relatives.

  Optional: You can find more information about the UPHPA here.

With respect to Section III.A.1.b (Severance of Joint Tenancies), consider:

• Do you think the court reached the right result in Riddle v. Harmon? Why or why not?
• How did the court reach its decision? In particular, was the court making its own determination as a matter of common law? Or following the intent of the legislature? Consider the relevance of:
  • the 1955 amendment to the California Civil Code (CB 401 n.4)
  • the California Civil Code’s presumption in favor of tenancies in common (CB 404 n.6)
  • Justice Holmes’s remark that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV [1399 to 1413]” (CB 403)
• Did Ms. Riddle’s attorney handle the matter in a manner consistent with his professional responsibilities?
  • Suppose you represented the Riddles in the purchase of the house as joint tenants. Then some time later, Ms. Riddle comes to you and says she wants to secretly sever the joint tenancy. What do you think your professional obligations are at this point?
  • What was the prevailing case law in California at the time Ms. Riddle’s attorney drew up the document severing the joint tenancy? What alternatives did the case law offer? Was it appropriate for the attorney to proceed as he did?
• What should be the result in the hypothetical at CB 404-405 note 1?
• Is there a way to create something functionally equivalent to a joint tenancy with a right of survivorship that can’t be secretly terminated? Would you advise a client to do that?

With respect to Section III.A.1.c (Multiple-Party Bank Accounts), we will go over the problems at CB 412.

With respect to Section III.A.2 (Sharing the Burdens and Benefits), please be prepared to discuss the Questions at CB 427-428. In addition:

• What differentiates the majority and minority rules set out in Spiller v. Mackereth? Which approach do you think is the fairer one? The more efficient one? The one more likely to avoid litigation? Which one might accord more closely with people’s general expectations?
• How does the court in Spiller define ouster in the context of co-tenancy? Why does it matter?

With respect to Section III.A.3.a (Marital Interests: Common Law), consider:

• How is an estate by the entirety created? What makes it different from a joint tenancy?
• Suppose the following conveyances are made:
  • Oscar → Maria and Kent in fee simple. Maria and Kent are in fact married at the time, but no mention of that is made in the deed. How do Maria and Kent hold the property?
  • Oscar → Maria in fee simple. Later Maria marries Kent. Can she convert it to entireties property then? Could she do so after losing $500,000 gambling in Las Vegas?
• In addition, make sure you understand exactly what alternatives the Hawaii Supreme Court had as of 1977 in Sawada v. Endo in resolving the question “of first impression” in Hawaii (CB 439).
  • Group I states (CB 439) (MA, MI, NC):
    • The husband may convey the entire estate, subject to the wife’s survivorship interest. (What this means is that if Blackacre is held by H&W in the entireties, H can sell it to X, but what X gets is full ownership subject to the possibility that if W outlives H, she will get it back on H’s death. On the other hand, if H outlives W, X contiues to own it on H’s death.)
    • The wife may not convey any interest in the estate during the marriage
    • Note that there are some differences among the Group I states (noted in the opinion). What they all share is express discrimination on the basis of gender. That has since been remedied. The question is how discrimination like this should be remedied. See the questions below.
  • Group II states (CB 440) (AK, AR, NJ, NY, OR):
    • A spouse may convey his/her interest in the estate, subject to the other spouse’s survivorship
  • Group III states (CB 440) (DE, DC, FL, IN, MD, MO, PA):
    • A spouse may not convey any interest in the estate during the marriage
  • Group IV states (CB 440) (KY, TN):
    • A spouse may convey his/her survivorship interest in the estate, but nothing else. (Consider why this might be valuable to a creditor, and in what way.)
• Consider that Hawaii would not want to discriminate against women on the basis of gender. That would obviously rule out Group I. On what basis does dissenting Justice Kidwell suggest that the solution chosen by the Group III states (and adopted in Hawaii) is sexist?
• The Endos conveyed the ownership of their house to their sons, for free, after the automobile accident on Nov. 30, 1968. (It was also after Helen Sawada filed suit against Kokichi Endo but before Masako Sawada filed her suit against him, but what counts is the date when the liability was incurred.) Why wasn’t that a fraudulent conveyance -- a conveyance intended to deplete the assets available to their (potential) judgment creditors?
  • In considering this question, keep in mind that creditors may attach and execute on any interest that the owner of the interest has a right to convey. But they may not attach an execute on an interest that the owner of the interest has no right to convey. Further, creditors of A may not, for obvious reasons, attach and execute on property of B to satisfy a debt owed by A. That general rule applies to spouses as well. Keep in mind also that Ume Endo was not legally responsible for her husband Kokichi’s bad driving.
  • What was the state of the ownership of the Endos’ house as of Nov. 30, 1968? This is the key to whether it was a fraudulent conveyance.
  • If the house was unreachable to creditors, why did the Endos (wisely, from their point of view) go ahead and put the title in the sons?
  • Suppose, contrary to fact, that Ume Endo had bought the house in her name only, prior to the marriage. When the Endos married, they moved into the house and lived there, leaving the title in her name. In 1967, Ume writes a will leaving the house to her husband Kokichi. (Of course, a will does not take effect until the testator dies.) After the accident caused by Kokichi on Nov. 30, 1968, Ume writes a new will leaving the house to their sons, and then dies on Jan. 29, 1971. Where does that leave the Sawadas? Was Ume’s rewriting of her will fraudulent or wrongful in some sense? Why or why not?
• Do you think Sawada v. Endo is a pro-family decision? The court seemed to think it was--it noted that the home is often a family’s most important asset, and that public policy favors families over creditors (CB 443). Do you agree? Why or why not?
• Is the court correct that creditors can adequately protect themselves against any possible unfairness caused by protecting entireties property against creditors? (See note 18 at CB 442.)

With respect to Section III.A.3.b (Marital Interests: Commmunity Property), please be prepared to discuss the Problems at CB 459-460, 460-461, 462, and 463. Note the slight revision to the material assigned for Section III.A.3.b

With respect to Section III.B.1 (Landlord Tenant Law), consider:

• Be familiar with the different categories of tenancies, but don’t worry about the notice issues raised in the problems at CB 473.
• Suppose, in a commercial lease of a warehouse for five years, the landlord makes no promise to keep the premises in good repair. A serious roof leak develops at the beginning of the fifth year of the lease. one which will cost many thousands of dollars to repair. The tenant comes to you for advice. What issues would you need to consider in determining the tenant’s rights?
  • Consider the same circumstances, except the landlord had promised in the lease to keep the warehouse in good repair. What issues would you need to consider in determining the tenant’s rights?

With respect to Section III.B.2 (Assignment & Sublease):

• How would the following hypotheticals come out in light of Ernst v. Conditt:
  1. Consider the following hypothetical:
     • Jan. 1: L --> T for 1 year.
     • April 1: T gets a new job elsewhere after 3 months and wants to leave town. T wants to have her friend T₁ move in; her plan is for T₁ to sign an agreement with T to live there for the remaining 9 months of the lease. Under the agreement between T and T₁, T₁ will pay rent monthly to T, and T will pay the rent to L. L won't be consulted about whether he approves of the change.
       Questions:
       
       1. Does T have the right at common law to do this? What do you need to know about the lease to answer this question?
       2. Suppose that the arrangement proceeds smoothly until October, when T stops paying L. Can L bring an action against T₁ for the last three months rent (assuming that T₁ continues to live there)?
       3. Instead of the facts mentioned in c., suppose that as of June 1, T₁ transfers his interest to T₂, who moves in. Could L sue T₁ for the remaining months’ rent if it is not paid as it comes due? Is T₂ liable? Is T liable? On what basis?
  2. Consider the following hypothetical:
     • Jan. 1: L --> T for 1 year.
     • April 1: T gets a new job elsewhere that will take her out of town for the next 6 months. T wants to have her friend T₁ move in; her plan is for T₁ to sign an agreement with T to live there for the 6 month period while T is gone, after which T will move back in. Under the agreement between T and T₁, T₁ will pay rent monthly to T, and T will pay the rent to L. L won't be consulted about whether he approves of the change.
       Question:
       If T fails to pay L for rent during the 6 months, could L go after T₁? Could L go after T? On what basis?
  3. Should the situations in 1 and 2 above be treated differently? Why or why not?

• With regard to Kendall v. Pestana, consider:
  • Suppose you were writing the statement of facts for Bixler or for Kendall in the appellate brief in Kendall v. Pestana. How would you frame the key issue(s) in a sentence or two? How would you do so if you were writing the statement of facts on behalf of Pestana?
  • What are the arguments for applying a reasonableness standard in Kendall? What are the arguments against such a standard?
  • Do you think Pestana’s action was reasonable? Why or why not?
  • What if there had been a provision in the lease saying “consent to sublease or assign may be withheld for any reason at all” (or “consent to sublease or assign may be withheld without regard to the reasonableness of the withholding”) would that have changed the outcome in the case? What would be the effect of such a provision after Kendall?
  • Should the court have left the rule in place and put the responsibility on the legislature to change it? Why or why not? What did the legislature do after the case was decided?
  • Should the same approach be taken in the case of residential leases? Why or why not? Notice (from the title of the Slavin case) that Brookline had rent control. Does that make a difference to your answer?
  • You represent a law student in the state of Cania, where the landlord has a duty to mitigate. The student signed a one-year lease, from Aug. 1 to July 31. At the end of school year, in May, T wants to leave for good, and not have to pay rent. Suppose the lease prohibits assignment and sublease without the landlord’s permission. Suppose, further, that the courts in that state have ruled that there’s no requirement of reasonableness on the part of the landlord in granting or denying that permission. The law student tells you that in general, the landlord is a pretty unreasonable person. What might you advise the student to do?
  • T consults you for legal advice in Florida under Fla. Stat. § 83.595. T agreed to rent apartment 6-L in a large multi-unit building for one year (from 9/1/23 to 8/31/25), putting down one month’s rent and a security deposit equal to one month’s rent. On 9/04/23, T (who had not moved in) informed L that she had planned to live in 6-L with her fiance, but they had just now broken up. She couldn’t afford it on her own. She offered to let L keep the month’s rent and security deposit if L would cancel the lease. L replied that he would not do so and that she would still be liable for the rental payments. In September 2024, L files suit against T seeking rent from T for the months 9/1/23 through 2/29/24, saying that the apartment was vacant during that period; he is not seeking rent for the period 3/1/24 through 8/31/25 because he leased it to a new tenant who moved in on 3/1/24. Through discovery, T finds out that on 11/15/23, someone had asked about whether 6-L was available, and L had replied, “No, I have a tenant for that unit so it’s not available,” and declined to show it.
    • Is T liable for the rent from 9/1/23 to 2/29/24? (Assume that the landlord credits her with the first months’s rent and security.) Why or why not?
  • Should there be a duty on the part of the landlord to mitigate when a tenant breaches by moving out before the lease has expired? Why or why not?
  • What is the relevance of the duty to mitigate to the issues in Kendall and Slavin?
  • Should the courts uphold a provision in a lease absolutely forbidding any subleases shorter than 30 days? 60 days? 180 days? Why or why not?

With respect to Section III.B.3.a (Warranty of Habitability: Common Law):

• What are the arguments for and against implying a warranty of habitability in residential leases?
• If there is a warranty, what kind of housing should it cover -- all housing? urban housing? multi-unit housing?
• What are the contents of the warranty? Where would you go to see the contents?
• Should the warranty be waivable by the tenant? Under what circumstances
• What are the remedies for violations of the warranty?
• What protections against retaliation are typically provided to tenants who assert rights under the warranty?
• Should something like a warranty of habitability (e.g., a warranty of suitability or warranty of tenantability) apply to the rental of commercial property -- for example, a warehouse? Why or why not?
• You represent an individual who runs a small import-export business specializing in wicker furniture. She wants to rent a small warehouse to store her inventory. The warehouse is one of five in a small, long single-story building; each warehouse unit extends from the front of the building to the back. What provisions would you want to see included in the lease regarding the condition, repair, and maintenance of the unit?

With respect to Section III.B.3.b (The Florida Landlord Tenant Statute), please be prepared to discuss Questions 1-8 (Supp. 206-209).

With respect to Section III.B.4 (Unlawful Discrimination), consider:

1. What part of the FHA prohibits housing discrimination against persons based on sexual orientation or gender identity?
2. In Wetzel, could the other residents who harassed Wetzel been held liable for violating the FHA? The Civil Rights Act of 1866 (§ 1982)?
3. Under Wetzel, what elements must a plaintiff show to hold a landlord responsible for harassment of a tenant by another tenant on the basis of race, color, religion, sex, handicap, familial status, or national origin?
4. What is “deliberate indifference” (CB 485)? Is it different from negligence?
5. Suppose St. Andrews management had “done nothing but listen” to Wetzel’s complaints. Why -- and in what way -- might the court have had “a more limited case”? (CB 481-482)
6. What is the reason, according to the court, for looking to Supreme Court rulings interpreting Title VII and Title IX for guidance in interpreting the FHA? What is the court’s response to St. Andrew’s assertion that those statutes are irrelevant because rental of a unit doesn’t place the landlord in a custodial relationship with the tenant or make tenants the agents of the landlord?
7. Suppose a plaintiff subjected to harassment similar to that which Wetzel suffered were to allege that the landlord should have known about the harassment, because it was so pervasive. Would the complaint survive a motion to dismiss?
8. What arguments did St. Andrews raise against holding landlords liable for tenants’ harassment of other tenants in some circumstances?
9. On what basis in the language of the FHA is a landlord responsible for discrimination that occurs as a result of harassment or discrimination after the tenant moves in?
10. What are the elements of a claim of retaliation under § 3617? Consider that the FHA is, after all, an anti-discrimination statute. Why is an intention to discriminate based on a protected characteristic (“discriminatory animus”) not one of the elements?
11. Are Wetzel and Kings Park Manor distinguishable, or do they just have different intepretations of the Fair Housing Act?
12. Be prepared to discuss the questions raised at CB 488-496. In addition, consider:
    • A homeowner runs an ad to rent a room in their house, stating ”Room available for rent at [Address].” An individual of Russian nationality goes to the address and asks about the room. Upon discovering that the individual’s nationality, the owner says, “I’m not renting to any Russians while this war is going on.” Is the owner liable under § 3604(c) of the FHA? Under § 1982? section(s)?
    • Might there be a claim against the owner in New Jersey based on State v. Shack?
13. Are there other forms of discrimination that should be outlawed? Consider discrimination in rentals against individuals who have vouchers under the federal Housing Choice Voucher program (commonly known as “Section 8 vouchers”) (see Supp. 226-230). Should there be a federal statute? If so, how should the discrimination that it would ban be described in the statute?

With respect to Sections III.C.1 (Fee Simple), and III.C.2.a (Life Estate), III.C.2.b (Knopf, White v. Brown; Restraints on Alienation), and III.C.2.c (Baker v. Weedon), we will discuss Problems 1-13 at Supp. 259. (As with the Recording Statute problems, there will be Comments available on the grants after we have finished discussing them.)

With respect to Section III.C.2.b (Knopf, White v. Brown; Restraints on Alienation), consider:

• Note that in Knopf v. Gray, all three courts agreed that the will was unambiguous (though with dissent on that point in the appellate court), but the Texas Supreme Court interpreted the will differently from the trial court and court of appeal. What do you make of that? In addition, should the Texas Supreme Court have granted oral argument?
• What arguments are there that Allen’s will left a life estate to her son, with a remainder in her grandchildren? What language in the section quoted at CB 280 supports that conclusion? What presumptions support that conclusion? Consider presumptions relating to transfers by deed, and presumptions relating to transfers by will. Is there relevant language elsewhere in the will?
• What arguments are there that Allen’s will left a fee simple to her son? What language in the section quoted at CB 280 supports that conclusion? What presumptions support that conclusion? Consider presumptions relating to transfers by deed, and presumptions relating to transfers by will. Is there relevant language elsewhere in the will?
• Suppose Allison Kilway had died before the litigation was commenced. Would that have any impact on what was to happen to the property after Bobby died?
• Is the Court correct that “inherent in a life estate is a restraint on alienation of the remainder interest.”
• How should the law treat restraints on alienation? Should a distinction be drawn between absolute and partial restraints? Be restraints on alienation of a fee simple versus restraints on a life estate? Between disabling restraints on alienation of a life estate and forfeiture restraints on alienation of a life estate?
• Suppose Allen had clearly stated, “I leave the 316 lot to my son Bobby for life, with no power to sell the life estate, then to my his three children Annette, Allison, and Stanley.” Bobby tires of dealing with the lot, and transfers it be gift to his brother Julio. Is the transfer valid? If so, what does Julio have?
• What did the court in White v. Brown say Jessie Lide, the testator, intended in her will? What arguments did it offer for its conclusion? What presumptions did it apply -- and where did the presumptions come from?
• Are there other explanations, different from what the majority said, of what Lide intended?

With respect to Section III.C.2.c (Baker v. Weedon), consider:

• How should the present possessory interest in a life estate and the remainder or reversion valued?
• What was the grant at issue in John Weedon’s will in Baker v. Weedon?
• Suppose Anna was letting the farmhouse fall into disrepair while she was living there after John’s death. Might she be liable to anyone for that neglect? If so, to whom?
• Suppose a developer was buying up all the land in the area for a major development, and offered to buy the farm for an above-market price, but Anna flatly refused to consider giving up her interest. Might she be liable to anyone for that refusal? If so, to whom?
• What was the dispute between Anna and John’s grandchildren?
• How are the present possessory interest in a life estate and the remainder or reversion valued?
• Note that the fair market value of the land was found by the trial court to be $168,500. The grandchildren believed it would be worth $336,000 in four years. This assumes an annual increase in the value of the land of 19% each year for four years. Is there any sign that any other potential investors in the land anticipate such returns?

With respect to Section III.C.3.a, please be prepared to go over Problems 13-17 on Supp. 259. As noted earlier, I will post comments on the individual grants after we’ve gone over them. Also, keep in mind that (Supp. 260-263 (up through the Doctrine of Destructibility of Contingent Remainders)) covers all of Sections III.C and III.D of the Syllabus, so don’t worry if you don’t understand everything in it the first read through. I think it will still be useful to read it as you start Section III.C.3.

With respect to Section III.C.3.a, please be prepared to go over Problems 13-17 on Supp. 259. As noted earlier, I will post comments on the individual grants after we’ve gone over them. Also, keep in mind that (Supp. 260-263 (up through the Doctrine of Destructibility of Contingent Remainders)) covers all of Sections III.C and III.D of the Syllabus, so don’t worry if you don’t understand everything in it the first read through. I think it will still be useful to read it as you start Section III.C.3.

With respect to Section III.C.3.b, consider:

• Note that both the trial court (Supreme Court) and the appellate court (Appellate Division) found the grant in Paul Smith’s College to be unambiguous, yet they disagreed on its meaning.
• What factors led the Appellate Division to determine that the grant created a fee simple determinable rather than a fee simple subject to a condition subsequent? Did the presumption discussed at CB 302 Note 2 play a role in its decision?
• Does it make sense to have a presumption in favor of a fee simple subject to a condition subsequent? Consider how it might (at least in theory) prove very unfavorable to the holder of the fee simple subject to the condition subsequent in cases where many years passed before the holder of the right of entry/power of termination asserted their right. Why, though, might this unfavorability be in theory only? (Consider the discussion of adverse possession at CB 301.)
• Note that the trial court held that the attempt to transfer the future interest from the Hotel Company to the College not only failed to convey that interest, but also extinguished it? Does this make any sense? Why should an attempt to convey an interest that is not transferrable simply be a nullity?
• The court held that the condition had been violated. Do you agree? What arguments can you make that the court was wrong? In this regard, think back to Kelo and the Supreme Court’s interpretation of “public purposes.”
• We will discuss the hypothetical at CB 302 Note 3.
• Suppose a grant were made in Florida with the language of the 1896 grant (CB 298):
  • in 1925. What would be the state of the title as of 1955?
  • in 1950. What would be the state of the title as of 1975?
  • in 1955. What would be the state of the title as of 1975?
  Assume that at no time was any action taken inconsistent with the limitation on use (i.e., for “church purposes only”). You will need to consult Fla. Stat. § 689.18, Supp. 249, which went into effect on July 1, 1951.
• How does New York’s approach (CB 303, Note 5) differ from Florida’s? Which is better, in your view?
• Does either of these statutes effectively take private property with no compensation, in your view?

With respect to Section III.C.3.c, consider:

• Was the language of the granting clause in the 1936 and 1941 deeds in Ink v. City of Canton sufficient to create a defeasible fee, or did it amount to no more than a statement of the motive or purpose for the gift? Did the “habendum clause” clarify the nature of the grant? How did the court read the grant?
• Where the state takes land by eminent domain, what is the majority rule as to whether the holder of possibility of reverter or right of entry is entitled to any compensation? What is the Restatement view? What was the Ink court’s view?
• How did the court split the proceeds of the condemnation action in Ink? Is it feasible to split the award as the court ordered? Why or why not?
• What other approach or approaches to the problem in Ink might better have respected the donor’s intent while still providing for sufficient flexibility?
• What approach does California take to this question? How did the court apply it in City of Palm Springs v. Living Desert Reserve?
• We will discuss the Problem at CB 319. In addition, suppose a mother who is Hindu provides in a will, “I leave Blackacre to my son so long as he marries a Hindu woman by age 30.” Blackacre is the mother’s sole real property; the will leaves “all my other property, real or personal” to the Hindu temple to which she belonged for many years. The son is 19 at the time of his mother’s death. Is the condition valid?

As for the problems in Section III.C.3.d (CB 319), focus on 1-4, 6-7 (answers at CB 1175) and keep in mind that we are assuming for simplicity’s sake (unlike the casebook) that all future interests are fully transferrable, devisable, and descendible. We will not discuss them in class, but they are useful practice. If you have any questions about these you may email them to me.

With respect to the material in Section III.D.1 (go over on your own), we will go over Problems 6-10 and 13-23 (Supp. 259).

With respect to Section III.D.2.a, as noted we will start discussion of this and continue it Thursday. We will primarily go over Problems 18-24, 26-31 at Supp. 259. As to the grants in Problems 21, 22, and 24-27, make sure you understand why the future interests in those grants could not have been remainders before the Statute of Uses in 1536. The material at CB 335-336 will be useful for this, as will be the guide at Supp. 260-273. Note that while we will go over the Doctrine of Destructibility of Contingent Remainders, you will not be responsible for it on the exam.

With respect to Section III.D.2.b, we will focus on the Grants at Supp. 259 and the hypothetical at Supp. 279-280.

With respect to III.E.1, we will discuss the Problems at Supp. 281, focusing on Problems 1-8. In addition, consider how application of the Rule Against Perpetuities would affect Nos. 21 & 22 of the Grants at Supp. 259.

With respect to Section III.E.2 (RAP: Reforms), what kind of limited reforms to the Rule Against Perpetuities have courts and legislatures adopted? Do you think the Florida legislature was correct in adopting the Uniform Statutory Rule Against Perpetuities? Why or why not? Note: You should be generally familiar with the reforms. You do not need to know the USRAP (including its Florida version) in detail. In an exam hypothetical, if it said nothing about the state of the law in the particular jurisdiction, you would want to apply the Rule in its classic “What might happen?” version, and then discuss what difference to the outcome the various reforms might make.

With respect to Section IV.A.1.a (Easements: Overview). Consider:

• Suppose O owns Blackacre. O is your client and tells you, “Years ago one of the previous owners of my farm got some money from a Railroad Company to allow it build tracks on a strip of land along the southern edge of my property. The Railroad never did, though. I’ve been planting wheat there all these years. Now the Railroad Company wants to lay some pipes along that strip. They’ll be above ground, and keep me from planting anything there. Can the Railroad Company do that?” What do you need to know to answer the client’s question?
• How are easements:
  • Created?
  • Transferred?
• How is a license different from an easement? In what ways is it similar?
• In Van Sandt v. Royster, was there an easement burdening lot 19 for the benefit of the other two lots (20 and 4)? If so, how did it come about?
• How would what the court says is the majority of US states (following the law of England) treat the reservation of an easement as opposed to the grant of an easement? Note, by the way, that what the court characterized as the majority approach in 1938 is probably a minority rule today. Is there any reason for distinguishing between implying a reservation of an easement and implying a grant of one?
• What factors did the First Restatement say should be taken into account in determining whether to imply an easement?
• Was Van Sandt a bona fide purchaser without notice? Why or why not? How should the issue of implied easements be dealt with under a recording statute? What did the Court hold? Is its ruling consistent with the approach taken in Stambovsky to inspections of houses? Would a statute like Fla. Stat. § 689.301 (Supp. 136; see Supp. 137-139) help with a situation like that in Van Sandt v. Royster? Why or why not?
• Who would you say was the cheapest cost avoider here -- is there anyone before the court who the court could have said was in the best position to avoid the problem in the first place?
• How does the Third Restatement’s approach differ from the First’s?

With respect to the material in Section IV.A.1.b (Negative, Prescriptive, Conservation Easements) consider:

• Suppose your client is an environmental group, and wants to start a program of getting landowners all over the country to donate conservation easements to it -- easements that would prevent development on the land. What issues would you need to consider?
• Suppose your client is a neighborhood association in a coastal city with a lot of historic architecture and a lot of tourists, as well as an increasing number of people who live there only in the summer, leaving their houses empty the rest of the year. The head of the association tells you that the members would like to create “primary residence easements” that would put a stop to this part-time trend. How might you write up such a easement? What issues would you have to consider regarding its enforceability?
• Why, historically, did the common law courts dislike most negative easements? Do those reasons apply today? Should American courts have adopted the four exceptions the English courts made to the rule against negative easements? Why or why not?
• A owns beachfront property in Florida. B owns the house across the street. Most people, like A & B, keep their homes as winter homes and live there only in the winter. Even so, A isn’t around much, and doesn’t notice that B walks across A’s lot most every day during the winter to get to the beach. B does this for 10 years. A discovers B walking across her lot one day, and forbids her to continue doing it. Does A have the power to do this? What if it’s not just B, but everyone in the neighborhood, who’s been walking across A’s property?
• If members of a nearby country club constantly walk onto X’s property to retrieve stray golf balls, will the country club get a prescriptive easement? Why or why not?
• What issues would negative prescriptive easements pose?

With respect to Section IV.A.1.c, consider:

• A, who owns a beachfront lot, grants B (a neighbor) a right, in writing, to walk across A’s property to get to the beach. If A later sells the house to X, can X bar B? If B sells her house to Y, can Y assert the right to walk across the beachfront lot -- against A? Against X?
• What was the rule, according to the court in Brown v. Voss, about using an easement intended to benefit one parcel to benefit another? Was the court’s holding consistent with that rule?
• Suppose A, the owner of Blackacre, a one-acre lot, grants B, the owner of Whiteacre, a 12-acre lot next door, a right to cross Blackacre to get to Whiteacre. B puts in a gravel driveway across Blackacre. Years later X, who bought Whiteacre from someone to whom B had sold it, wants to build 12 houses on Whiteacre, the residents of which will all use the driveway across Blackacre. It would be ideal, from X’s point of view, if the driveway could be paved and widened. Can A stop B’s plan?
• Suppose you are an attorney in the state of Cania and a client who owns a farm seeks to end an easement that the owner of a neighboring farm has for a driveway across the southeast corner of her land. “As far as I can tell,” she tells you, “he hasn’t used it since around 2015. I really do want to be done with the easement,” she continues, “because I want to put up a fence around my property and I don’t want to bother with a gate for it.”

With respect to the material in Section IV.A.2.a.i, please be prepared to go over the Problems at CB 843.

With respect to the material in Section IV.A.2.a.ii:

• What were the commitments and rights in Tulk v. Moxhay? Which one was Tulk seeking to enforce?
• In the U.S. today, would the promise that Tulk was seeking to enforce be enforceable as a real covenant? Why was it not enforceable as a real covenant in England?
• If the promise wasn’t enforceable as a real covenant in England, on what basis did the court enforce it?

With respect to the material in Section IV.A.2.a.iv (Neponsit):

• What was the “vertical privity“ issue in Neponsit? How did the court resolve it?
• What was the “touch and concern“ issue in Neponsit? How did the court resolve it?
• Should courts enforce affirmative covenants? Affirmative covenants to pay money? Why or why not? How are these covenants different from other covenants?

With respect to Section IV.A.2.a.iv (Termination), consider:

• River Heights Associates L.P. v. Batten
  • It may help first to see how the area looks today:
    • Google map showing the streets and lots ↴
      
    • Google Earth image showing the same area as the map ↴
      
    • Google Earth image view of the larger area ↴
      
    • You should be able to identify Lots 2A and 2B (see map at CB 874) on the Google map and Google Earth images.
  • How, according to Wood, had the neighborhood changed since 1959 when the covenants were first entered into? Why, according to Wood, should this matter -- and lead to termination of the restriction on their land use?
  • If you were representing Batten and the other residential owners, what would you argue?
  • What standard does Virginia apply to claims that changed conditions render a restriction unenforceable? Do you think the court correctly applied that standard? Should the “border” areas of the subdivision be treated differently from the inner areas?
  • What role, if any, did the rezoning of the lots on Route 29 play in deciding the case?
  • Suppose the following hypothetical:
    • The HighTech Signs shop opened for business in its current location in 2006. It is the first building north of the intersection of Carrsbrook Drive and Route 29, on the east side. ↴
      
    • The lot on which the shop is located is burdened by the covenant at issue in Batten.
    • The Carrsbrook residence owners benefited by the covenant take no action to stop commercial use of the parcel.
    • In 2023, the owner of another nearby parcel fronting Route 29, also burdened by the covenant, seeks a declaration that the covenant is unenforceable, given changed conditions in the neighborhood. Do you think the case should come out differently from how the court ruled in Batten?
      
  • Suppose the building that Hightech Signs occuipies were converted to apartments. Would that violate the covenant? What about a 5-story apartment building on that lot?
  • What did the Court rule as to the developer’s claim that the homeowners had waived the restrictions of the covenant through their own violations of it?
  • Suppose the increase in the market value for the burdened lots in Batten as commercial property would be more than the combined harm to the market value of the surrounding residences from commercial development on the burdened lots. Should the court decline to enforce the covenant, but give damages to the homeowners?
  • How would Batten come out under Restatement § 7.10 (CB 878)? Under NY RPAPL § 1951 or Mass. Gen. Laws Ann. ch. 184 § 30 (CB 878)?
  • Should the change of conditions doctrine apply to easements? What does Restatement § 7.10 (CB 878) say?
• Pocono Springs (CB 246)
  • As Pocono Springs shows, the law allows abandonment of easements. Why doesn’t it allow abandonment of fee simple ownership? Should it?
  • Why did the question of abandonment come up in Pocono Springs? Why wasn’t the covenant no longer enforceable under the changed conditions doctrine?
  • How would the Restatement (Third) of Property: Servitudes § 7.12, Supp. 312, apply to Pocono Springs?
  • Is there any practical way for the MacKenzies to get out of their obligation to pay fees, after this case?

With respect to Section IV.A.2.c (Discriminatory Covenants):

Note: You are not responsible for this material on the final exam.

• Shelley v. Kramer:
  • How common was the kind of covenant at issue in Shelley v. Kramer?
  • Would the Missouri courts have had a basis at common law for finding the covenant at issue in Shelley v. Kramer unenforceable? What basis (or bases) might they have for doing so? How does this question bear on the constitutional question at issue in Shelley?
  • On what basis did the Supreme Court find enforcement of the covenant in Shelley v. Kramer unenforceable?
  • Suppose the Missouri courts would have had no basis under the common for finding the covenant at issue in Shelley v. Kramer unenforceable. Would that have any impact on the constitutional question?
  • Consider whether the Thirteenth Amendment might have provided an alternative basis for the Supreme Court to invalidate the covenant in Shelley v. Kramer.
  • Suppose you are having a party at your house, and a guest sharply criticizes a U.S. Supreme Court Justice whom you strongly admire. Angered, you order the guest to leave. She does not, and you call the police to remove the guest from your house. Is that involvement of the police a violation of the First Amendment, which protects freedom of speech? How is Shelley like this example? How is it different from it?
  • Note the casebook editors’ reference (CB 868) to the Justice Stevens’ explanation as to why three Justices did not participate in the case -- that their homes in the District of Columbia likely had covenants similar to those in Shelley. After Shelley, would enforcement of those covenants violate the Constitution? What doctrinal issue might be posed? How would you resolve it? Note that a similar question arose with respect to segregated schools in the District of Columbia.
• Racially restrictive covenants and the Fair Housing Act:
  • Suppose O makes a gift of Blackacre to his daughter A, and includes a racially restrictive covenant in the deed.
    • Has O violated the Fair Housing Act?
    • Suppose A submits the deed to the county recording office, seeking to have the deed recorded. Would A be violating the Fair Housing Act by submitting the deed for recording? Would the county recording office be violating the Fair Housing Act by recording the deed?
    • Suppose A subsequently puts Blackacre up for sale, and refuses an offer that she would otherwise accept, citing the racially restrictive covenant. Has A violated the Fair Housing Act?
      • Suppose instead that A subsequently puts Blackacre up for sale. X, who is Black, makes an oral offer. A replies, “Yes, sounds good, I’ll have my lawyer write up the contract and send it to you to sign.” X replies, “Great. One other thing -- one of the neighbors told me there’s a racially restrictive covenant on Blackacre. Is that right? It must’ve been created many years ago. I’m glad you’re not honoring it. Whoever created that restriction was such a racist.“ A replies angrily, “Hey that’s my father you’re talking about. He’s not perfect but I won’t deal with anyone who insults him. You know what ... just forget the whole thing. I’ll find another buyer.” Has A violated the Fair Housing Act?
  • What is your view of the question posed at CB 871 as to whether, in providing a buyer with a title report of a chain of title that includes a mention of a racially restrictive covenant recorded in 1911, the title abstractor violates the Fair Housing Act?
  • With respect to Mason v. Adams County Recorder (CB 869), you will cover standing in Constitutional Law I, so we will not focus on the doctrinal issues of standing. Consider more generally, though, whether the presence of such racially restrictive (and unenforceable) covenants in land title records simply reflects historical wrongs or creates harms today.
  • Suppose a covenant limits development of each burdened lot in a suburban neighborhood to a “single-family residence.” Would neighbors who have the benefit of the covenant be able to prevent a house from being used for a group home for people with mental disabilities? Would it matter if the covenant spoke instead of “single-family residential use”? What impact might the FHA have in such a situation?