• Jacque v. Steenberg Homes
  • What court issued the opinion in Steenberg?
  • What are the facts of the case?
  • Is this case a criminal proceeding or a civil proceeding?
  • Were there other legal consequences for Steenberg Homes besides the $1 nominal damages award and $100,000 punitive damages award?
  • What is the procedural history of the case?
    • What claim did the Jacques present to the trial court?
    • What did the jury hold?
    • What ruling did the trial court make after the jury returned its verdict?
    • What did the appeals court hold on appeal?
    • What did the Supreme Court hold on appeal?
  • Why did the Jacques deny permission to Steenberg Homes to drive across their property? Was it reasonable?
  • Suppose (a) the only way (as opposed to the cheapest and most convenient way) to deliver the mobile home in the winter had been to drive across the Jacques’ property and (b) the Steenberg personnel had asked respectfully if they could cross the Jacques’ property. Would it have been reasonable for the Jacques to say no?
  • 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?
  • Consider the following hypothetical taking place in Wisconsin sometime after the ruling in Steenberg: Alberto -- intending to harm Janelle’s reputation -- falsely states that Janelle was fired from her previous job for embezzling over a million dollars. 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?
• Commonwealth v. Magadani
  • What court issued the opinion in Magadani?
  • What are the facts of the case?
    • Are the facts as laid out by the Court facts specifically found by the jury?
  • Is this case a criminal proceeding or a civil proceeding?
  • What is the procedural history of the case?
    • What statute was Magadani said to have violated? Imagine you were the prosecutor. Make a list of the facts you would want to prove.
    • Did Magadini deny that he had committed conduct covered by the criminal trespass statute? What defense did he assert? What are the elements of the defense? Did the trial court permit him to present that defense to the jury? Why or why not?
    • What did the jury hold?
    • Note that somewhat unusually, the trial court’s ruling was reviewed directly by Massachusetts’ highest court, the Supreme Judicial Court.
    • What did the Supreme Judicial Court hold on appeal?
  • What, according to the Court, are the elements of a necessity defense? Does the Court here rule on all of them?
  • Does the Court’s holding mark the end of the charges against Magadani?
• Should there be a necessity defense to trespass? Why or why not?

With respect to Section I.A.1.b, 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. 13, 19.) 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? (See Supp. 19.) 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 was the issue in relation to Dartmoor National Park? What Act does that dispute involve?
  • How was the issue posed in the lower courts? See the account in the Jarvis article (See Supp. 14-16.) Is that the same as how the UK Supreme Court framed the issue in Darwall? (See Supp. 22-24.) How did the Court reach its determination?
• 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)? (See Supp. 25-26.)

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

• The casebook summary is not bad, but I have included some excerpts from the holding to give more historical context (as to how the checkerboard arose and as to the courts’ dealings with it over the years) and a better sense of how the defendants made their way from one public parcel to another.
• 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?
• Is Iron Bar consistent with Shack? With Jacque v. Steenberg?
• Suppose the defendants had been found liable for trespass, and the plaintiff were awarded a dollar in nominal damages. Do you the law should allow the plaintiff to seek punitive damages in such a case?
• Stepping back from the details, compare 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.B.1:

• 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?
• The statute under which the defendants were prosecuted is quoted at Supp. 27. Does this statute define “trespass”?
• What was the holding of the New Jersey Supreme Court? Point to specific language in the opinion. You will find more than one place where it states its holding -- are they both entirely consistent?
• In thinking about the scope of a court’s holding, it can be useful to consider how it would apply to different scenarios:
  • Would a representative of a private charity giving free medical assistance have access to a migrant farm in New Jersey?
  • 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 may a landowner place on those who do have access under the Court’s holding?
• 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.B.2 (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 (b) 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. 31-32. 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?

With respect to Section I.C (Relativity of Title), we will discuss the hypotheticals for the questions at Supp. 45, 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 aid first; you will deprive yourself of a valuable opportunity to improve your case reading skills.

The Exams and Grading page now has a link to information on Practice Question 1, which will be due on Tuesday, September 2, by 4:30 p.m. Check that page for information on the Practice Question and on getting your Mid-Term AGN, which you will need. New!

We completed our discussion of the material in Section I.C and then briefly moved on to Section II.A.1 (Eminent Domain).

We discussed the material in Section II.A.1. 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?
• Just compensation:
  • When the power of eminent domain is exercised, the Fifth Amendment requires the payment of “just compensation.“ What is the measure of “just compensation” in general? What would that be in the case of Susette Kelo’s house? Would it include the value of her sentimental attachment to it? Should it, as a matter of constitutional law?
  • Consider the first of the two questions on CB 637. What do you think the law should be on these matters? No need to check the sources cited there -- try to work out on your own what you think would be the best approach.
    • Suppose, also, that the opposite happens: a portion of a business’s land is being taken (say, to widen a highway), and the effect of the project will be to significantly increase the value of the remaining land (because there will be more traffic and more customers). Should the increase in the value of the remaining land be treated as part of the just compensation and so reduce the cash payment for the strip that is taken?
• 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 practical problems might the government face in buying land to construct a highway? Consider the construction of I-95 through Overtown (Supp. 48-49). What about buying land for a large military base in an area where there are many small farms -- would that pose the same problems for the government as in trying to buy land for a highway?
• Midkiff:
  • What problem regarding land ownership was the Hawaii legislature attempting to address through the Land Reform Act? How did it seek to address that problem?
  • What requirement in the Fifth Amendment (made applicable to states through the 14th Amendment) did appellees (land owners) say was violated by the Land Reform Act?
  • What standard did the Court articulate for determining whether a taking is for a “public use”?
  • What does Midkiff say about the constitutionality of using eminent domain to take private property from one owner and convey it to another, or (as in this case) to use that power to force a landowner to sell the property to another person?
  • Note that the Court’s opinion, which was unanimous, was written by Justice O’Connor.
• 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 does Kelo say is the constitutional standard for the exercise of eminent domain? What does “public use” mean, according to Kelo?
  • Do you think the Court has correctly interpreted this constitutional phrase in Midkiff and Kelo?
  • Should it be relevant to interpretation of the Fifth Amendment that in the nineteenth century, the federal government and a number of state governments granted railroads the power of eminent domain in building their railroad networks? Why or why not?
  • 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 hold 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?
  • In dissent (not reproduced in the casebook), Justice Thomas argued that the Court’s holding in Berman not only was wrong in its interpretation of the takings clause, but also emboldened cities into undertaking “[p]ublic works projects in the 1950’s and 1960’s [that] destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore,” and elsewhere. He also referred to this portion of Berman in support of his description of the impact:
    
    “Surveys revealed that, in Area B [the first area in D.C. slated for redevelopment], 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health, it was necessary to redevelop Area B in the interests of public health. The population of Area B amounted to 5,012 persons, of whom 97.5% were Negroes.”
    Justice Thomas argued that public use should be interpreted to allow eminent domain “only if the government owns, or the public has a legal right to use, the property.” If the Court had adopted Justice Thomas’s approach, would that address the concern he raises about the effect on minority communities?
    • One way to think about this question is to ask:
      • Would Benjamin Brown have been allowed to keep his house in Overtown if Justice Thomas’s view had prevailed in Kelo? (Supp. 48-49)
      • Would Manhattan Beach have been able to seize the beach resort owned by a Black couple in 1924 (CB 636) if the standard Justice Thomas urged in Kelo had been constitutional doctrine then?
    • Consider what other ways historical injustices in the use of eminent domain might be remedied, including with respect to Manhattan Beach’s seizure of the resort, and the Reconnecting Communities program (Supp. 50-52)
  • 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?
  • 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. How effective do you think these statutes are likely to be in limiting the use of eminent domain?

With respect to Section II.A.2.a.i, consider:

• Why have a doctrine of adverse possession? What purposes does it serve? Suppose you were a member of a state legislature and a bill was introduced to abolish the doctrine of adverse possession. Would you support that bill? Why or why not?
• Suppose the following events take place:
  • 1981: X sells Blackacre to O. Unbeknownst to O, X does not actually have title to Blackacre. Y does. X just forged Y’s signature on the deed. As we will see later, a deed with a forged signature is void.
  • 1982: O sells Blackacre, a farm, to A. A farms Blackacre for more than 40 years, expanding the house and barns. During that time, A marries and the couple raises a family on Blackacre, supported by the earnings from the farm and the community farmers market they run.
  • 2025: Y brings suit to eject A. Who should win? Why?
• Do you think the possession in Marengo Cave Co. was open and notorious? Why or why not?
• As we will see later, a prescriptive easement is a limited right to cross someone else’s property, gained by something like adverse possession. If your neighbor regularly flies a drone over your backyard for many years, should the neighbor gain a prescriptive easement to do so? Why or why not, in your view?

With respect to Section II.A.2.a.ii, consider:

• Chaplin v. Sanders:
  • Who were the plaintiffs and who were the defendants in Chaplin?
  • Whenever you are reading descriptions of landownership disagreements, you should do three things to help you understand the facts and legal issues:
    1. Draw a diagram of the land indicating what is in dispute. Here, you don’t need to do that, since there is a diagram at CB 137.
    2. If there is an adverse possession issue, determine what the statute of limitations is -- it’s good to have that in mind as you read the facts.
    3. Write out the history of significant legal and factual events, by year. You may need two, as in this case, since there are two adjoining lots. For each, it should start out like this:
       • Western Lot (current owner: Sanders):
         • Pre-1957/1958: ? → Hibbards [this is just a way of getting the history started -- a way of saying that at some point before 1957 or 1958, the Hibbards acquired title to the Western parcel from some unspecified person (?)]
         • 1957 or 1958: Hibbards clear out land up to drainage ditch and create driveway/road, inward of the Eastern parcel. Establish trailer park.
         • [You should continue on, up to the time of the lawsuit (which is around 1978)]
       • Eastern Lot (current owner: Sanders):
         • Pre-1960: ? → McMurray
         • 1960: McMurray has survey done, discovers true boundary, informs Hibbards of encroachment.
         • [You should continue on, up to the time of the lawsuit (which is around 1978). Keep in mind that the court distinguishes between a Parcel A and a Parcel B on this lot.]
         Note that you want these histories to be concise and also on point. This means you will need to think hard about what facts are material to the legal claims (or at least arguably material).
  • What legal claim did the plaintiffs make in the trial court? What did the trial court hold? What did the intermediate appellate court hold?
  • Go through each of the elements of adverse possession and figure out which facts would be relevant -- and why they would be relevant, in terms of the purposes behind having adverse possession.
• In addition, consider the questions raised in CB 140-141 (Notes 1 & 2).
• Color of Title:
  • Why does the law generally treat adverse possession under color of title more favorably than adverse possession not under color title?
  • Consider the following scenario:
    • T has title to Blackacre, a 60-acre lot suitable for farming in the state of Cania, but is out of the country and paying no attention to it and making no use of it.
    • B buys Blackacre from Z and receives a deed conveying ownership of Blackacre to B. Unfortunately for B, Z does not have valid title to Blackacre.
    • B farms the west 40 acres of Blackacre, and does nothing on the remaining 20 acres to the east.
    • B’s activities on the west 40 acres are open and notorious, continuous, and exclusive. Under Cania law, state of mind is irrelevant. In Cania the statute of limitations for adverse possession is 10 years.
    • Eleven years after first entering Blackacre, B sues to quiet title to Blackacre, claiming ownership of the entire 60 acres. Assuming that AP successfully demonstrates that her activity on the west 40 acres satisfies all the elements of adverse possession, should the court award her title to the entire 60 acres? To just the west 40 acres?
    • How might the outcome be different if B had not received a title (invalid) from Z, but instead had just noticed that Blackacre was unoccupied and entered it and begun farming the west 40 acres?
  • We will discuss the Problems at CB 142-143. For any of the CB problems, it’s a good idea after reading them to sketch out the scenario and maybe even make a diagram. For example, for the first part of Problem 1:
    • 1975: ? --> O (100-acre farm); O occupies and uses the front 60 acres, but not the back 40 acres.
    • 1994: Z --> A (all of the 100-acre farm). Z has no claim to Blackacre. A enters the back 40 acres of O’s farm and uses it in a way that satisfies the hostility requirement and is open and notorious, continuous, and exclusive.
    • 2004: A sues to quiet title, claiming ownership of the entire 100-acre parcel. (Assume a 10-year statute of limitations.)
    • What result?
    For the second part of Problem 1:
    • 1975: ? --> O (100-acre farm). The deed to O is invalid. O occupies and uses the front 60 acres, but not the back 40 acres.
    • 1994: Z --> A (all of the 100-acre farm). Z has no claim to Blackacre, so the Z --> A deed is invalid. A enters the back 40 acres of O’s farm and uses it in a way that satisfies the hostility requirement and is open and notorious, continuous, and exclusive.
    • 2004: A sues to quiet title, claiming ownership of the entire 100-acre parcel. (Assume a 10-year statute of limitations.)
    • What result?
• Agreed boundaries, acquiescence, and estoppel:
  • Read this material now (CB 143); we will discuss it when we get to the Florida statute.

With respect to Section II.A.2.a.iii, 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:
      • 2012: A occupies Blackacre, land belonging to T.
      • 2022: A conveys “all my interest in Blackacre” to B
      • 2025: T sues to eject B.
    • Second set:
      • 2012: A occupies Blackacre, land belonging to T.
      • 2022: B ejects A.
      • 2025: T sues to eject B.
    • Third set:
      • 2012: A occupies Blackacre, land belonging to T.
      • 2022: T sells Blackacre to T₁.
      • 2025: T₁ sues to eject A.
  • Consider the following events. How would they come out under the statute at CB 149?
    • First Scenario:
      • 1991: T is sentenced to 30 year years in prison (and begins serving the sentence).
      • 1992: AP occupies land belonging to T.
      • 2020: T is released from prison.
      • 2025: T sues to eject AP.
    • Second Scenario:
      • 1991: AP occupies land belonging to T.
      • 1992: T is sentenced to 30 year years in prison (and begins serving the sentence).
      • 2022: T is released from prison.
      • 2025: T sues to eject AP.
    • Third scenario
      • 1991: T enlists in army, is sent to Iraq, then Afghanistan, and later back to Iraq.
      • 1992: AP occupies T’s land.
      • 2022: T returns from Iraq, having left the Army.
      • 2025: T sues to eject AP.
  • How should Problems 1 & 2 on CB 149 be resolved?
  • Should there be a disability exception in an adverse possession statute?

• Howard v. Kunto:
  • 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 148 (Question 3)?
  • 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 above? In this regard, make sure you understand the Buchanan v. Cassell case, discussed by the court at CB 147.
    • Formulate the Washington Supreme Court’s holding on this issue in your own words:
      • Using the word privity
      • Not using the word privity
  • Rather than deal with adverse possession, why not just stick to the record titles as determining ownership, and hold the surveyor liable to the Kuntos for professional malpractice?
• What accounts for the variation in state law regarding whether adverse possession can run against the government? What do you think the law should be?

With respect to Section II.A.2.a.iv, consider the relative hardship or “improving trespasser” doctrine described at (Supp. 53-54):

• 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. 55. 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. 56-57, 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? Note that it was subsequently reported that a court had ordered the house on her lot to be torn down.

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

• Imagine the following set of facts in Florida:
  • Blackacre is a 50-acre property in the Redlands (an agricultural area in Miami-Dade County). Blackacre is bounded on the north by a road and on the south by a canal.
  • Blackacre has been unused for a number of years. The title holder, T, lives in Georgia and has not visited it or used it in many years. The east and west sides have an old decrepit wooden fence that is rotted in a number of places and has some gaps.
  • In January 2018, AP enters the lot with the idea of farming it. AP puts a sign up on the lot saying “AP Farms.” A camping aficionado, AP camps there for a number of nights, generally leaving her tent and other camping equipment on site when not camping.
  • In December 2018, AP starts farming Blackacre.
  • AP plants tomatoes on 40 acres.
  • AP begins construction of a house, barn, storage units for equipment, and a farmers market over the other 10 acres. Over the ensuing years, AP farms Blackacre and runs a farmers market on it.
  • In August 2025, T is in Miami for business. He reads a story in the Miami Herald detailing how The Farmers Market at AP Farms™ has been a South Florida hit over the years. Neighboring farmers are quoted as saying they’re impressed at what AP has accomplished with her property. T visits The Farmers Market at AP Farms™ to buy some fruit. To his dismay T realizes that AP Farms is Blackacre.
  • In September 2025, T brings a lawsuit to eject AP.
  • How would this dispute be resolved under the Florida statute?
  • How would this dispute be resolved if the facts took place not in Florida, but in Washington State (where Chaplin v. Sanders was decided)?
• How would you analyze the facts of Howard v. Kunto under the Florida statute?
• Please be prepared to discuss the question at Supp. 65, left hand column (end of note 2) about the 2013 amendment to the statute.

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

• Be prepared to discuss the questions raised in the readings at Supp. 66(starting at note 3)-69, and the Seton case (Supp. 70-72, and the questions on it at Supp. 68-69).
• 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 143) 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?

With respect to Section II.A.2.b.iii, we will discuss the Questions at Supp. 76. As noted on Supp. 76, the National Housing Law Project Reading (Supp. 88-101) is optional, except for Supp. 92-94, which are required.

With respect to Section II.B, please be prepared to discuss the questions at CB 160-161 as well as Newman v. Bost and Gruen. Consider:

• How do the basic requirements for a gift differ from those for a gift causa mortis? What policy reasons underlie the requirements?
• With regard to Gruen v. Gruen:
  • It will be helpful to read Note 1 on CB 175 before you read the case.
  • What is your view of the ethical conduct of Victor Gruen’s tax lawyer?
  • What was the trial court’s holding? The Appellate Division’s? The Court of Appeals’?
  • What does it mean to make a gift of a remainder? How do the requirements for a gift apply in such a case? Suppose, instead, that Victor had written, “In recognition of your 21st birthday, I’m putting in my will a provision giving you the Klimt when I die.” How would that be different in legal effect from what he stated in the letter?
  • What is your view of the ethics of Michael Gruen’s failure to list his interest in the painting as an asset in connection with his divorce? What effect, if any, did that failure have on the resolution of the issue in Gruen v. Gruen?
  • We will discuss Question 2 under “Notes and Questions.”
• With regard to Newman v. Bost:
  • Who is Bost?
  • What property does Julia Newman say was given to her by J.F. Van Pelt? Was she claiming a gift inter vivos or a gift causa mortis? Both? What specific arguments did Newman make on each item?
  • How else might Van Pelt have left all the property in question to Newman? Does it make sense, in your view, for the law to recognize gifts causa mortis at all?
  • We will go over the Problems at CB 168.

With respect to Section II.C.1 (Introduction), we will not discuss that material in class, but you should read CB 353-355 for an overview, and look through the Multi-Board Residential Real Estate Contract 5.0 (CB 355-368) to get a general sense of the issues that can arise in residential property sale. We will later go through parts of the contract.

With respect to Section II.C.2.a.i (Caveat Emptor):

• Although we will discuss only caveat emptor, you may find this comparison of D2D and CE useful for context: pdf | slide show
• Consider the following hypotheticals taking place in a state where caveat emptor is the only governing doctrine -- i.e., where there is no duty to disclose. 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. 106-107)
  • 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.

    
    

With respect to Section II.C.2.a.ii:

• In 1991, was the law in New York State with regard to sale of residential real estate best described as caveat emptor or as duty to disclose?
• Does the Stambovsky ruling make a general change in the law of New York with regard to sale of residential real estate? Is that something that you could expect the New York Supreme Court, Appellate Division -- an intemediate appellate court -- could do?
• We will discuss the facts and holding of Stambovsky and the holding. Among other things, consider:
  • Did the house’s reputation as being haunted harm its market value? What does the court say about this?
  • Did the court find that there was in fact a ghost haunting the house?
  • What is your view of the tone of the opinion?
  • What exceptions to the absence of a duty to disclose does the court note, besides the presence of a ghost?
  • In what way does the court’s approach to caveat emptor resemble State v. Shack’s approach to the right to exclude?
  • If one viewed the problem as the house’s reputation as opposed to the presence of a ghost, would that have any bearing on the reasons the court gives for its ruling?
  • State the court’s holding as succinctly as you can (using language from the opinion).
  • Note that Stambovsky involved a broker’s liability. It’s an important question, but we won’t cover that. We’ll focus on the seller’s liability.
• Consider the same hypotheticals as the ones we considered for caveat emptor (which you can find here), but taking place in a duty to disclose jurisdiction such as Florida (under Johnson v. Davis).
• In addition, consider: 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. 111 (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 disclosure statutes:
  • 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. 130-133 (§ 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 (Supp. 123) different from Mass. Gen. L. Ch. 93 § 114? (Supp. 123) Which is the better drafted of the two?
  • 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. 124-129). Does IC 32-21-5-7 essentially require the home seller to warrant the sound or habitable condition of the real estate?
    • Consider also under the IC:
      • 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 a seller knows that the home they are selling has extensive termite damage, and that a multiple murder took place in the home three years ago, leaving lingering ghosts. Would IC 32-21-6-5 (Supp. 129) relieve the seller of any obligation to diclose any of these matters?

With respect to Section II.C.3 (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.C.4, we will go over the Florida Bar Exam problem.

With respect to Section II.C.5, we will discuss the hypotheticals at Supp. 142-143:

• Note: you will see a mistake in your printout of Supp. 142, on lines 5-6, left hand column. The reference to “CB 574-587” should be to “CB 355-368.” You can print out a corrected version here, if you’d like.
• 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.C.6:

• Note that the readings for Section II.C.6 have been revised. Please make sure you check the revised Syllabus.
• O says to 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?
• What, by way of content and formalities, is required for a deed to be valid?
• Is an unrecorded deed invalid?
• Does a deed necessarily tell you the precise boundaries of the property being transferred?
• Consider the three types of deeds from the point of view of risk management. What is it that might go wrong from the buyer’s perspective that provisions in a deed (general warranty, special warranty, or quitclaim) might (or might not) address? How much protection against this risk do you think warranty deeds (whether general or special) give to buyers as a practical matter?
  • Review the sales contract at CB 355-368. What kind of deed does that contract require?
• If the seller is willing to give the buyer a general warranty deed, is there any need, from the buyer’s perspective, for title insurance?
• Why is delivery required for a deed to be effective?
• 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? What constitutes delivery? Can there be constructive delivery of a deed? Symbolic delivery?
• 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. 144-145) 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. 146.

With respect to Sections II.C.7.a (Mortgages (Introduction)) and II.C.7.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 (including securitization); and how foreclosures work. The last point includes making sure you understand the difference between a judicial foreclosure and a nonjudicial (or power of sale) foreclosure,
• 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.C.7.c, consider:

• Make sure you understand the following:
  • The difference between a land sale contract (or contract for the sale of land) and an installment land sale contract (also called a contract for deed or a lease-to-own contract).
  • A deed of trust versus a judicial foreclosure mortgage
  • An equitable mortgage
  • The difference between an installment land sale contract and a lease-to-sell or lease purchase agreement
• Should an installment land sale contract be treated as a mortgage under foreclosure laws? Why would this matter? Should treatment as a mortgage be automatically extended to all buyers in under an installment land sale contract (the Restatement) or only to some buyers, depending on their circumstances (the approach taken in Grombone v. Krekel (CB 420, Note 1)? In Grombone, the court held that the trial court has discretion in whether to treat a particular installment land sale contract as a mortgage, taking the following factors into account:
  The factors to be used by the trial court in determining whether to treat an installment land contract as a mortgage include the amount of the vendee’s equity in the property, the length of the default period, the willfulness of the default, whether the vendee has made improvements, and whether the property has been adequately maintained.
• Horne
  • Here is the NY Times article referred to at CB 417. The article refers to this Report by the National Consumer Law Center. Both are entirely optional, in case you’re interested in more background.
  • We will look at the Fair Housing Act in more detail in connection with leases, but the FHA, 42 U.S.C. § 3601 et seq., generally prohibits discrimination in housing and residential real estate-related transactions on the basis of race, color, national origin, sex, religion, familial status, or disability. This has been interpreted to include discrimination in making loans to purchase a house.
    42 U.S. Code § 3604 - Discrimination in Discrimination in the sale or rental of housing and other prohibited practices
    ... [I]t shall be unlawful--
    1. To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

    42 U.S. Code § 3605 - Discrimination in residential real estate-related transactions

    1. In general
       It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.
    2. “Residential real estate-related transaction” defined
       As used in this section, the term “residential real estate-related transaction” means any of the following:
       1. The making or purchasing of loans or providing other financial assistance-
          1. for purchasing, constructing, improving, repairing, or maintaining a dwelling; or
          2. secured by residential real estate.
       2. The selling, brokering, or appraising of residential real property.
    3. Appraisal exemption Nothing in this subchapter prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.

  • What is “redlining”? Does it violate the FHA? What specific language in &#sect; 3605 would you point to?
  • What is “reverse redlining”? What must a plaintiff allege to state a claim for reverse redlining under the Eleventh Circuit holding in Steed (referred to at CB 418)? Did they make a claim of intentional racial discrimination, or a claim of disparate impact, or both?
  • What facts did plaintiffs allege in Horne to support their claim of reverse redlining under Steed?
  • What does the U.S. Supreme Court require for a claim of disparate impact under the FHA in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. (referred to at CB 418)? Did the plaintiffs allege sufficient facts to state a claim that Harbour’s alleged unfair and predatory facts had a disparate impact on Black residents?

With respect to Section II.C.8.a (Title Recording and Searches), consider:

• What is the difference between a grantor-grantee index and a tract index?
• 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.
• Note that neither index legally establishes title. Title must be done by assessing the significance of the documents found through the index. What barriers might there be to establishing a system of title registration (sometimes called a Torrens system) in which the state maintains an official record, binding on everyone, of who owns what land?

With respect to Section II.C.8.b (Types of Recording Acts):

• Note that the assigned readings for this Section have been revised.
• The material in the Casebook can give you a general idea of the different types. Keep in mind, though, that it is no substitute for learning to read the actual language of the statutes. Our purpose in looking at recording acts is not to try to guess which category a given statute falls in and then make an inference as to how a statute of that sort might resolve a dispute over title, but to learn how to read specific statutory language and see how it might resolve a dispute over title, regardless of what category of recording act one might say the statute falls within. So make sure you go over the material on parsing statutes at Supp. 156-158 very carefully before tackling the problems (Section II.C.8.c).

With respect to Section II.C.8.c (Recording Acts in Action): We will go over the Problems at Supp. 159. 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.

With respect to Section II.C.8.d:

• Guillette v. Daly Dry Wall, Inc.
  • Make sure you do a schematic title history of the transfers of land in the Gilmore tract to each of the persons named in the opinion. Note that it should start with:
    Year? → Gilmore records plan for development of a tract.
  • You should review this schematic title history and set of questions.
  • Suppose the facts of Guillette arose in the hypothetical state of Cania, which had not had occasion to decide the issue the Massachusetts court decided.
    • What did Daly plan to do? Why did Guillette, Paraskivas, and Walcott seek to enjoin Daly’s plans?
    • What would you argue on behalf of Daly? On behalf of Guillette, Paraskivas, and Walcott?
    • Note that the opinion states, “Daly made no inquiry concerning restrictions and did not know of any development pattern.” (CB 448, first ¶) What does the court mean by “development pattern”? Should this fact matter to the outcome?
  • Do you agree with the court’s decision in Guillette? Why or why not?
• Waldorff
  • What is the difference between constructive and inquiry notice?
  • Should use of a quitclaim deed put the buyer on notice of a prior claim? Why or why not?
  • What duties does Waldorff place on buyers or mortgagees to inspect a property before purchasing it or lending money as part of a mortgage transaction? Is the duty as set out by the Florida Supreme Court reasonable, in your view?
  • What issue was raised regarding whether Waldorff gave valuable consideration? Does it matter to the interpretation of the recording statute?

With respect to Section III.A.1:

• Make sure you understand the different kinds of concurrent interests at common law, as well as the presumptions that apply in their creation.
• We will go over Problems 1 and 2 at CB 241. Consider how they would come out under common law and under the Florida Stat. § 689.15 (Supp. 244).
• We will go over the questions at CB 241-242 under “Severance of joint tenancies.”
• What should be the result in the hypothetical at CB 242 under “Secret Severance”? 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?
• We will go over the Problems at CB 244 under “Multiple-Party Bank Accounts.”

With respect to Section III.A.2:

• If a person who is a tenant in common or a joint tenant no longer wishes to be a co-owner with the other owner(s), what options do they have to end the co-ownership relationship? Is the answer the same for tenants by the entireties?
• Suppose a tenant in common or a joint tenant seeks partition of a family farm. Does that mean physical division? A court-ordered sale and distribution of the sale proceeds to the co-owners? Should there be a presumption in favor of one or the other? If so, what should be sufficient to overcome the presumption? Should a co-tenant’s sentimental or emotional attachment to property be taken into account in deciding what form the partition should take?
• Should the courts honor an agreement among co-tenants never to seek partition?
• 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.3, please be prepared to discuss the Questions at CB 258-260. 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.4, 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 263).
  • Group I states (CB 263) (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 263-264) (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 265) (DE, DC, FL, IN, MD, MO, PA):
    • A spouse may not convey any interest in the estate during the marriage
  • Group IV states (CB 265) (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?
  • Suppose that Ume Endo had bought the house in her name only, prior to marriage. After 30 years of marriage, living in that house, the Endos’ seek divorce. The house -- with the title still in Ume’s name -- is worth $750,000. Ume and Kokichi have a joint brokerage account with $250,000 in it. Kokichi has a separate savings account with $50,000. In the divorce proceedings, how would the court allocate these assets to the Ume and Kokichi?
• 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 266). 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 CB 266)
• The material on dower and curtesy is interesting but optional.

With respect to Section III.B.1:

• Be familiar with the different categories of tenancies, but don’t worry about the notice issues raised in the problems at CB 276.
• 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. What do you think the law should provide as the landlord’s responsibility? The tenant’s?
  • Consider the same circumstances, except the landlord had promised in the lease to keep the warehouse in good repair. Would that change your answer to the prior question?

With respect to Section III.B.2 (Unlawful Discrimination):

1. You should review the Horne case (questions here), with this in mind: How did the court derive the elements of a “reverse redlining” from the language of the FHA? Keep that question in mind as you consider the court in Wetzel derived the elements of a “hostile housing environment” claim from the FHA.
2. I have posted some PowerPoint slides that will be useful in understanding the FHA, the Civil Rights Act of 1866, and the Problems in Note 7 at CB 295-296. Note that the material in Note 8 (CB 296-298) is optional. You are not responsible for the material in Note 8 for the final exam.
   • You should make sure you have these revised pages to the Supp. 162-163
   • Housing Discrimination PowerPoints: pptx   pdf
3. What part of the FHA prohibits housing discrimination against persons based on sexual orientation or gender identity?
4. In Wetzel, could the other residents who harassed Wetzel been held liable for violating the FHA? The Civil Rights Act of 1866 (§ 1982)?
5. 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? Another way to put it is, what are the elements of a claim for a hostile housing environment? (see CB 288).
   • How does the court derive this kind of claim from the language of the statute?
6. What is “deliberate indifference” (CB 290)? What function does it play in the elements for a hostile housing environment claim? Is deliberate indifference different from negligence?
7. 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 287) (“Had the management defendants done nothing but listen ...”)
8. 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?
9. 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?
10. What arguments did St. Andrews raise against holding landlords liable for tenants’ harassment of other tenants in some circumstances?
11. 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?
12. 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?
13. Are Wetzel and Kings Park Manor (CB 292) distinguishable, or do they just have different intepretations of the Fair Housing Act?
14. Be prepared to discuss the questions raised at CB 295-296 (Note 7). 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?
15. 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. 221-225). Should there be a federal statute? If so, how should the discrimination that it would ban be described in the statute?

With regard to Section III.B.3.a:

• 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 the material in Section III.B.3.b, 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?

  
   
  

With respect to Section III.B.4.a:

• 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.4.b, please be prepared to discuss Questions 1-6 at Supp. 201-204.

With respect to Sections III.C.1 (Fee Simple) and III.C.2 (Life Estate), we will focus on Problems 1-13, 18-20 (Supp. 254), and on White v. Brown and the materials following it in the Casebook (questions below). As for White v. Brown, consider:

• What did the majority in White v. Brown say Lide intended in her will? What arguments did it offer for its conclusion? What presumptions did it apply -- and where did the presumptions come from?
• What part of the will did the majority say should not be respected? On what basis?
• How did the dissent read Lide’s will? Would any part of the will have been invalid under the dissent’s reading?
• Who had the better argument -- the majority or the dissent?
• Is there another explanation, different from what the majority or the dissent said, of what Lide intended?
• 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? (Which of those two kinds was it, according to the dissent in White?)
• How are the present possessory interest in a life estate and the remainder or reversion valued?

In addition, review the material on waste, and then consider the following problem:

• In 2014, O dies. O’s will provides, “I leave Blackacre to A for life, remainder to B.” Blackacre is a 10-acre tract of undeveloped land in the state of Cania, in an area used for growing vegetables. It also has a house on it.
• A lives 10 miles away from Blackacre. She is too busy with a multi-year, ever-expanding project writing the definitive biography of Herman Melville to pay much attention to Blackacre. The house develops a roof leak, which gets worse each year. The house is at risk of developing a mold problem.
• X owns Whiteacre, adjacent to Blackacre, just east of it. X grows vegetables on Whiteacre. In 2019, noticing that Blackacre is unused, X starts planting vegetables every year on Blackacre.
• In 2025, B happens to pass by Blackacre and sees vegetables planted on it, and notices a big hole in the roof of the house, which appears unoccupied. Some of the neighbors tell him that X has been farming Blackacre. B calls A and tells her what he’s seen and heard from the neighbors. B tells A that she needs to do something about X, because the statute of limitations for adverse possession in Cania is 7 years. “And you’ve got to do something about the house!” he adds. “I would prefer not to,” A replies.
• B comes to you for advice. He’s worried about whether he’ll ever get Blackacre. What legal rights and remedies does he have to protect his interest? Against whom?

We completed our discussion of the material in Section III.C.2 (Life Estates) and then began our discussion of Section III.C.3.a (Defeasible Fees).

With respect to Section III.C.3.a (Defeasible Fees), we will go over Problems 14-17, 21-22 (Supp. 254). Keep in mind that (Supp. 255-258 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 in connection with Section III.C.3.a.)

As for the problems in Section III.C.3.b (CB 206-207), do those on your own. We will not discuss them in class, but they are useful practice. Keep in mind that we are assuming for simplicity’s sake (unlike the casebook) that all future interests are fully transferrable, devisable, and descendible.

Here is the restaurant hypothetical we discussed in class:

Suppose the following events take place:

• 2013: O → A, “so long as the premises are not used for the sale of beer, wine or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises.”
• 2014: A opens a restaurant. Menu includes:
  • Dishes cooked with red wine
  • Sunday brunch special - a free glass of champagne with brunch
• 2025: B wants to buy the restaurant and add a bar.

  B consults you about her plan. What do you advise her? Note: Cania has a 10-year S/L.

With respect to the material in Section III.D.1 , we will go over Problems 6-10 and 12-23 (Supp. 254).

With respect to Section III.D.2.a (Remainders), we will primarily go over Problems 18-24, 26-31 at Supp. 254. 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 in the Casebook will be useful for this, as will be the guide at Supp. 255-258. Note that while we will go over the Doctrine of Destructibility of Contingent Remainders, you will not be responsible for applying it on the exam.

With respect to Section III.D.2.b (Executory Interests), we will focus on the Grants at Supp. 254 and the hypothetical at Supp. 274-275.

With respect to Section III.E.2, you should be generally familiar with the main types of reforms. The Florida version of the Uniform Statutory Rule Against Perpetuities is included so you can get a sense of it, but we will not study it in detail. We will also have some time for questions on Estates & Future Interests and the Rule Against Perpetuities.

With respect to Section IV.A.2.a (Overview of Easements and Licenses):

• How is an easement different from fee simple ownership? In what ways is it similar to it?
• How is a license different from an easement? In what ways is it similar to it?
• 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?
• 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. 130; see Supp. 131-133) 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?

With respect to Section IV.A.2.b (Negative/Prescriptive Easements):

• 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 Cania, which has a 7-year statute of limitations for adverse possession. B owns the house across the street. Most people, like A and B, keep their homes as winter homes and live there only in the winter. Even so, A isn’t around much. On the infrequent occasions when A is there, he walks across the north side of his lot to get to the beach. In 2021, A is at his house and notices B also walking across the north side of A’s lot to get to the beach. A confronts B and says, “I don’t want you to cut across my lot to get to the beach.” B brushes him off, saying, “I’ve been doing this since I moved in across the street 5 years ago, and I’m not going to stop now.” A similar confrontation takes place in 2025. B comes to you for advice, asking whether A has the power to forbid her from crossing A’s lot. What do you say?
• 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?
• The material in Note 5 (CB 512-513) on public easements and public trust doctrine is interesting, but you are not responsible for it on the exam.
• Why are negative prescriptive easements not recognized?

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

• 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?
• What strategic error may Vosses’ lawyer have made? How might that have affected the outcome?
• If you were a member of the Washington Supreme Court at the time Brown v. Voss was under consideration, would you have joined the majority or dissent?
• 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?
• Which approach to relocating easements is best in your view -- the traditional rule, or the Restatement (Third) approach (see Note 3, CB 522)?
• A person farms someone else’s land for many years in a way that meets all the requirements of adverse possession can decide, upon gaining title, to build houses on it. In what way are prescriptive easements somewhat more limited in terms of their scope?

With respect to Section IV.A.2.d (Termination of Easements):

• 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.”
• In what other ways can easements come to an end?

With respect to the material in Section IV.A.3.a.i, please be prepared to go over the Problems at CB 534.

With respect to the material in Section IV.A.3.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?