Past Assignments Spring 2013

MATERIALS FOR PROPERTY

 

1.    Ehrlich, Photocopied Assignments & Supplement (the “Supplement”)

2.    Dukeminier, Property (7th ed).

 

 

1.            For Thursday, January 3:

a.    Read Supplement pages 1-9.  Make sure you answer the questions on pages 7 and 9.  If you don’t have time to get to the Bookstore, you can read pages 1-9 here.

b.    Read Dukeminier & Krier pages 729, 759-764 and 847-853.

2.            For Tuesday, January 8:

a.    Prepare a summary of last class.

b.    Answer the following question:

                                      i.        Bob owned two adjacent lots, Lots A and B. Ten years ago Bob conveyed Lot A to Ann. The deed to Ann included a covenant “Ann promises on behalf of herself and her successors that Lot A will be used only for residential purposes.  The benefit of this promise is intended to run to Bob and all successors of Lot B.”  Ann then conveyed Lot A to Art but the deed from Ann to Art was defective.  Art knew about the covenant.  After 10 years, Art discovered the defect in his title and brought a quiet title action against Ann, asserting he has gained title by adverse possession.  Art won the lawsuit and immediately began constructing a gas station.  Last week, Bob sued Art, seeking to enforce the covenant.  What argument could Art raise at common law to defend against enforcement of the covenant by Bob?  Should the covenant be enforceable against Art for damages? For an injunction?

c.    Covenants Running at Equity ("Equitable Servitudes"): Read the materials in Part B2 of the Assignments.  Read the introduction to Tulk v. Moxhay at page 10 of the Supplement, then read the case at pages 854-856 and notes 1-6 following the case.

d.    Implied Covenants and Servitudes: Read the materials in Part B3 of the Assignments. Read the introduction to Sanborn v. McLean at page 11 of the Supplement, then read the case at pages 859-862 and notes 1-4 following the case.  Answer the following questions:

                                      i.        What elements must a plaintiff prove to show the existence of an implied reciprocal servitude by a developer?

                                    ii.        If there was an implied reciprocal servitude made by the developer, when did the servitude arise?

1.    Dec 1892 (when the first deed containing a covenant was delivered)?

2.    Sept 1893 (when 1st person purchased Lot 86?)

3.    Around 1900 (after 51 or so purchasers had executed similar covenants)?

4.    1911 (when Mr. McLean purchased Lot 86)?

                                   iii.        Why is the case of Sanborn v. McLean problematical from a "notice" perspective?  The case is not followed in modern states, such as California and Massachusetts.  No rational developer, buyer, mortgage lender or title insurer would support the case today. Why not?  

3.            For Thursday, January 10:

a.    The Requirement of "Touch and Concern": Read the materials in Part B4 of the Assignments up to & including Neponsit Property Owner's Assoc., Inc. v. Emigrant Industrial Bank at pages 864-871 and the notes following the case.  In Neponsit, Prof. Bigelow proposes the following test for when a covenant or servitude “touches & concerns” land (see note 37):

                                      i.        “If the covenantor’s legal interest in land is rendered less valuable by the covenant’s performance, then the burden of the covenant satisfies the requirement that the covenant touches and concerns the land.  If, on the other hand, the covenantee’s legal interest in land is rendered more valuable by the covenant’s performance, then the benefit of the covenant satisfies the requirement that the covenant touch and concern land.” 

1.    As the book author points out, the test suffers from the problem of “circularity”. Does the test makes sense?

2.    To help focus on this issue, consider the following hypothetical:  Ann owns Lots 1 & 2. She conveys Lot 2 to Bob & promises in the deed: “I Ann, on behalf of myself, heirs, successors and assigns of Lot 1 promise to pay Bob, his successors and assigns of Lot 2, $5,000 per year.”  Does this covenant satisfy the Bigelow test?  Is it the type of covenant that should be binding on successors to Lot 1?

4.            For Tuesday, January 15: -- This is a lengthy assignment, give yourself plenty of time.

a.    Review Caullett v. Stanley Stillwell & Sons, Inc. the Supplement at pages 12-16. Why was the court unwilling to enforce the covenant against successors, even though the parties clearly intended to bind successors.

b.    Answer, in writing, the questions in the handout “Hypotheticals – Covenants & Servitudes.”  There are copies on-line: PDF Format or MSWord Format.  You are permitted and encouraged to work in groups of up to 3 students. 

                                      i.        If preparing your work on a computer, make sure you bring a hard copy to class.

                                    ii.        Use your Student I.D. number(s) to identify your work.

                                   iii.        If you are going to miss class you must hand in this assignment before class begins by e-mail to jstallworth@cwsl.edu.  If you email the assignment make sure you attach a file in Word, WordPerfect, PDF or Text format.

                                   iv.        If you work with another student or two, submit a single answer with all of the Student ID numbers

c.    Part B(5): Whitinsville Plaza, Inc. v. Kotseas at Supplement pages 17-23.

5.            For Thursday, January 17: 

a.    Review the Model Answer to the Covenants & Servitudes Hypothetical.  Copies were handed out in class or can be found on-line in the Links section below. 

b.    Scope & Interpretation:  Read the “Family Guy” HOA letter.  Why did the tenant get to keep his Family Guy cutout in the window?

c.    Part B(6). Read Hill v. Community of Damien of Molokai in the Supplement at pages 24-32. Note 5 on page 881 of Dukeminier.

                                          i.    Suppose that the covenant in Hill stated the following:

1.    No home may be occupied except by a single family related by blood, adoption or marriage, or

2.    No home may be occupied except by Christians?

3.    No home may be occupied except by members of the Buddhist faith?

4.    No home may be occupied except by members of the National Rifle Association?

                                        ii.    Would these covenants “touch & concern” land and be enforced against successors in New Mexico?  Should they be enforceable against successors?

d.    Read “Methods of Terminating Easements & Covenants” in the Supplement at pages 33-34.

6.            For Tuesday, January 22:

a.    Waiver & Estoppel:  Review the last few slides of the slide show from last class.  What is the doctrine of waiver?  How is the doctrine of estoppel different from the doctrine of waiver?

                                      i.        Hypo #1: Assume the same facts as the “four-corners” hypo in the slide show: Beautiful residential neighborhood in wooded & spacious suburban area. 1,000 lots all restricted to residential uses. In 2004 at a major intersection, Corner Lot A is purchased by a Christian congregation which builds a church.  None of the 999 other owners objects. In 2006 Corner Lot B is purchased by a Jewish congregation which builds a synagogue.  None of the 999 other owners objects. In 2008 Corner Lot C is purchased by a Buddhist congregation which builds a temple.  None of the 999 other owners objects. In 2010 Corner Lot D is purchased by a Muslim congregation which begins to build a mosque.  Many owners bring an action for an injunction to enforce the residential covenant.  The court holds that the doctrine of waiver applies and the covenant cannot be enforced to prevent construction of a Mosque on Lot D.  Now, another religious group wants to build a temple on a cul-de-sac at the end of a small dead end lane.  Can the surrounding landowners succeed in an injunctive action to stop construction, or does the doctrine of waiver apply?

                                    ii.        Hypo #2: Same subdivision.  About 20 homes have doctor’s offices. Is waiver applicable if:

1.    A lawyer wants to use his/her home as an office?

2.    A businesswoman wants to build a 7/11 convenience store?

                                   iii.        Estoppel Hypo: Mrs. Dogood resides in a large residential subdivision outside of San Diego.  All homes currently used for residential purposes.  Many children live in the subdivision. Dogood proposes to the Homeowner’s Association that she be allowed to modify her home for use as a day-care center for children. The Homeowner’s Association agrees that her proposal is a great idea and grants oral permission. Mrs. Dogood spends $40,000 in preparation. After that, a new Homeowner’s Association board is elected.  The new board of the Homeowner’s Association serves a “Notice of Non-Compliance” (or some homeowners bring an action seeking injunction & damages).  Do the doctrines of waiver or estoppel apply?

b.    Western Land v. Truskolaski at pages 882-887.  When reading Western Land keep in mind that it is a termination case.  In class we will focus on the touch and concern element and divide our inquiry into two questions:

                                      i.        Did the covenant/servitude touch and concern when it was created? 

                                     ii.        Does the covenant/servitude continue to touch and concern at the time of the case, if circumstances have changed?

c.    Read Rick v. West on pages 887-888 with a critical eye.  Although this is a short case in your casebook, we will spend considerable time on Rick v. West and the notes following the case.

                                      i.        Did the trial judge reach the correct result?  Does the covenant made by Rick to use the retained land “touch & concern” by enhancing the objective value of the land of the party seeking to enforce the covenant?  Keep in mind the following: 

                                    ii.        Suppose that Mrs. West’s land is worth $50,000 if the surrounding vacant land is restricted to residential use but Mrs. West’s land is worth $75,000 if the restriction is not enforceable by or against her. 

                                   iii.        Does it make sense to enforce the covenant against successors to Mr. Rick?  Does it “touch and concern” by enhancing the objective value of land and stabilizing land use so as to allow for real estate investment and development?

                                   iv.        If the covenant is not enforced against Rick’s successors, can Mrs. West still get damages from Rick for breach of covenant?  What would be the amount of her damages if her land increases in value as a result of the non-enforcement of the restriction on surrounding land? 

d.    Read the New York statute on page 889 and the Massachusetts statute on page 990 with great care and identify the purpose of each statutory provision.

e.    Condominiums and Other Common Interest  Communities:  Part B(8). Pages 896-899 and Nahrstedt v. Lakeside Village Condominium Association, Inc. at pages 900-910 and the notes following the case

7.            For Thursday, January 24:

a.    Wrap Up & Review Easements & Covenants: The essay exam from Spring 2002 (covering covenants & servitudes) and a model answer are available on line in the Links section below. This weekend would be a good time to organize the material and then take the exam under normal, exam-style conditions.  You can then use the model answer to double check whether or not you have mastered the material covered on that exam. 

b.    Introduction to Public Land Use Control: Read the introductory materials on Public Land Use Control in Part I (C)(1).

                                      i.        Review Supplement pages 4-9.

                                    ii.        Read Supplement pages 35-36 and "The Zoning Process" at Supplement pages 37-44.  These materials cover substantial portions of the subject matter of zoning that we will examine in far greater detail over the next few weeks.  Read this material carefully now.  Review it from time to time and use it as a resource throughout our discussions of zoning.

1.    Read D&K pages 925-929 and 941-945. Review the chart at page 41 of the Supplement to Class.  We will use the chart as a road map throughout our discussions of zoning.

                                   iii.        Read Village of Euclid v. Ambler Realty Co. at pages 930-938 and the notes 1-5 following the case.

1.    In Village of Euclid v. Ambler Realty Co., the U.S. Supreme Court focuses on the “due process” clause of the 5th and 14th Amendments to the U.S. Constitution.  The Court faces the question of whether or not a comprehensive zoning scheme that allocates land within a town to different uses (single residential v. two-family residential) is a deprivation of property without due process of law.  The Due Process clause of the 5th and 14th Amendments provides that “No person shall … be deprived of life, liberty, or property, without due process of law.”  In Civil Procedure class you studied the procedural aspects of the Due Process Clause, requiring that parties in civil and criminal litigation be granted notice, right to be heard, public forum etc.  In the context of land use regulation, the Due Process clause has a different meaning.  The enactment of regulations is done legislatively, not in courtrooms.  Therefore, there are no procedural protections for individual citizens such as notice, right to be heard, confrontation of witnesses, etc.  On the other hand, the Due Process clause imposes substantive requirements on legislation – the legislation must be in furtherance of the public health safety and welfare.  This is the aspect of the Due Process Clause being discussed in Euclid.

2.    What legal test(s) does the Court apply in answering the question: Is a comprehensive zoning scheme that allocates land within a town to different uses (single residential v. two-family residential) a deprivation of property without due process of law?

8.            For Tuesday, January 29:

a.    Review the following quotes from Euclid v. Ambler Realty.  The Court is referring to whether or not the legislature was acting in furtherance of the public health, safety and welfare when legislating subtle distinctions between single family and two family zones:

                                      i.        Page 934 last ¶:   “The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.”

                                    ii.        Page 937, 2nd:  After long discussion of reasons why it makes sense to have these types of subtle classifications between one and two family zones, the Court states: 

1.    “If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

                                   iii.        Page. 935, 1st ¶ last sentence: “If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”

b.    Problems of diminution in value and the "Takings" clause: Read pages 1061-1065 and 1077-1080. Skim notes 1 and 2 at pages 1073-1076. It is not required for class but you might find it interesting to read Kelo v. City of New London at pages 1065-1072

                                      i.        Physical invasion. Page 1081 and Loretto v.Teleprompter Manhattan CATV Corp. at pages 1082-1093 and notes 1-5 following the case.

1.    Loretto v. Teleprompter Manhattan CATV Corp. looks at whether or not public land use regulation is equivalent to the physical taking of private property for public use, contrary to the 5th Amendment of the U.S. Constitution, which states:  “Nor shall private property be taken for public use without just compensation.”   What test(s) does the court use to determine if a “regulatory taking” has occurred in this case. 

                                    ii.        Control of nuisance. Hadachek v. Sebastian at pages 1096-1100 and notes 1-2 following the case.

1.    Hadachek v. Sebastian also focuses on the question of when land use regulation may go so far as to be the equivalent of a taking of private property for public use, contrary to the 5th Amendment of the U.S. Constitution.  In that case, Mr. Hadachek operated a brick making factory for many years in the area of Pico Heights in Los Angeles.  Eventually, a zoning regulation was enacted that prohibited the use of land for brick-making in that part of Los Angeles.  According to the complaint filed by Mr. Hadachek, the zoning regulation caused a reduction of 80% or 90% in the value of his land.  Why does the U.S. Supreme Court refuse to find a “taking” has occurred, even if there is such a dramatic decrease in value? What are the factors in favor of Mr. Hadachek’s argument that a regulatory taking has occurred?  What are the factors in favor of the City of Los Angeles?  What is the strongest factor in Mr. Hadachek’s favor?

Information about Fall, 2012 Property Grades

·         Exam Statistics ß Click here to see comprehensive statistics about the exam

·         Exam Review:  You can review your exam in the Faculty Support Office starting Monday.

o    Essay: You will be able to see your own answer plus a copy of the essay question and a model answer.

o    Multiple Choice: You will be able to see a copy of your Scantron results, indicating which questions you answered correctly or incorrectly.  You will also be able to view the multiple choice questions and the correct answers.

·         Visiting with Prof. Ehrlich:  You are welcome & encouraged to visit with me about exams.  Please prepare for the meeting by doing the following:

1.    Review the essay question, your answer and the model answer in the Faculty Support Office.

2.    Review the multiple choice questions and answers and see which questions you answered incorrectly.

3.    Bring a copy of your class summaries and outline with you when you come to my office.

 

9.            Thursday, January 31:

a.    Problems of diminution in value and the "Takings" clause:

                                      i.        Control of nuisance. Hadachek v. Sebastian at pages 1096-1100 and notes 1-2 following the case.

1.    Review Hadachek v. Sebastian.  This case focuses on the question of when land use regulation may go so far as to be the equivalent of a taking of private property for public use, contrary to the 5th Amendment of the U.S. Constitution.  In that case, Mr. Hadachek operated a brick making factory for many years in the area of Pico Heights in Los Angeles.  Eventually, a zoning regulation was enacted that prohibited the use of land for brick-making in that part of Los Angeles.  According to the complaint filed by Mr. Hadachek, the zoning regulation caused a reduction of 80% or 90% in the value of his land.  Why does the U.S. Supreme Court refuse to find a “taking” has occurred, even if there is such a dramatic decrease in value? What are the factors in favor of Mr. Hadachek’s argument that a regulatory taking has occurred?  What are the factors in favor of the City of Los Angeles?  What is the strongest factor in Mr. Hadachek’s favor?

2.    Pennsylvania Coal Co. v. Mahon at pages 1103-1110 (read the dissent of Justice Brandeis carefully) and notes 1-4 following the case. Make sure you pay close attention to the dissent of Justice Brandeis in the case of Pennsylvania Coal Co.

3.    Pay special attention to note 4 regarding the case of Keystone Bituminous Coal Assoc. v. DeBenedictis.

                                    ii.        HFH, Ltd. v. Superior Court of L.A. at Supplement pages 45-52 & pay special attention to Footnote 14. 

1.    Make sure you review the questions and comments on page 53 (answer question 1 in writing.) Focus on these questions while reading HFH:

1.    Write a short comparison distinguishing a “vested use” from a “vested classification.”

2.    What were the factors in HFH that influenced the court to find that a taking had not occurred?

3.    What is (are) the strongest factor(s) supporting HFH’s assertion that a regulatory taking has occurred?

4.    What is (are) the strongest factor(s) opposing HFH’s assertion that a regulatory taking has occurred.?

5.    What factor or sub-factor does HFH add to the list of factors uses to determine when regulation constitutes a taking?

6.    Why does the court in HFH mean when it discusses the “sweepstakes” game that HFH & Vons were willing to play -- but only if they won? 

10.          Tuesday, February 5:

                                      i.        HFH, Ltd. v. Superior Court of L.A. at Supplement pages 45-52 & pay special attention to Footnote 14. 

1.    Make sure you review the questions and comments on page 53 (answer question 1 in writing.) Focus on these questions while reading HFH:

1.    Write a short comparison distinguishing a “vested use” from a “vested classification.”

2.    What were the factors in HFH that influenced the court to find that a taking had not occurred?

3.    What is (are) the strongest factor(s) supporting HFH’s assertion that a regulatory taking has occurred?

4.    What is (are) the strongest factor(s) opposing HFH’s assertion that a regulatory taking has occurred.?

5.    What factor or sub-factor does HFH add to the list of factors uses to determine when regulation constitutes a taking?

6.    Why does the court in HFH mean when it discusses the “sweepstakes” game that HFH & Vons were willing to play -- but only if they won? 

b.    Regulatory Taking:

                                      i.        Part (C)(3)(c)(3): (Penn Central Transportation Co. v. City of New York at pages 1113-1128 and notes 1-3 following the case).  Pay particular attention to the “character of the governmental action” factor.  Is this a strong or weak factor in favor of Penn Central?  Why?

c.    Remedies for "Inverse Condemnation": Read the notes at Supplement page 53. Read notes 1-3 at pages 1166-1170 and First English Evangelical Lutheran Church of Glendale v. County of L.A. at Supplement pages 54-65 and the notes following the case.

                                      i.        According to the Court in First English, what are the remedies available to a plaintiff who successfully proves that a regulatory taking has occurred? 

                                    ii.        Suppose that a regulation is enacted that is found by the court to be a taking.  The fair market value of the land is $1 million. In First English, which of the following remedies does the Court allow:

1.    $1,000,000.

2.    Injunctive relief (a “writ of mandamus”) prohibiting enforcement of the regulation.

3.    Temporary damages (if the legislature repeals or amends the regulation so that it is no longer a taking).

4.    All of the above.

5.    1 and 2?

6.    2 and 3?

11.          Thursday, February 7:

a.    Remedies for "Inverse Condemnation": Read the notes at Supplement page 53. Read notes 1-3 at pages 1166-1170 and First English Evangelical Lutheran Church of Glendale v. County of L.A. at Supplement pages 54-65 and the notes following the case.

                                      i.        According to the Court in First English, what are the remedies available to a plaintiff who successfully proves that a regulatory taking has occurred? 

                                    ii.        Suppose that a regulation is enacted that is found by the court to be a taking.  The fair market value of the land is $1 million. In First English, which of the following remedies does the Court allow:

1.    $1,000,000.

2.    Injunctive relief (a “writ of mandamus”) prohibiting enforcement of the regulation.

3.    Temporary damages (if the legislature repeals or amends the regulation so that it is no longer a taking).

4.    All of the above.

5.    1 and 2?

6.    2 and 3?

b.    Developments in the law of "inverse condemnation":

                                      i.        Part (C)(3)(e)(1): Read Lucas v. South Carolina Coastal Council at pages 1131-1148 and notes 1-6 following the case. In Lucas, does the U.S. Supreme Court announce a new "per se" test for when regulation constitutes a taking?

12.          Tuesday, February 12:

a.    Developments in the law of "inverse condemnation":

                                      i.        Part (C)(3)(e)(2):  Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency at pages 1158-1166 and the notes following the case. Carefully note the Court’s discussion of many of the cases we’ve studied: Penn Coal Co., Penn Central Transportation Co., First English Evangelical Lutheran Church, Village of Euclid, Keystone Bituminous Coal.  This wraps up our discussion of the 5th Amendment Takings Clause.

                                    ii.        Listen to the National Public Radio broadcasts by clicking on the links in the Links & References section below.

b.    Comprehensive Plans: Part (C)(5)(a)(4).  Read pages 942-945 and review Supplement pages 37-44. Read the Model Land Development Code excerpts at Supplement pages 65-66.

c.    Flexibility & Non-Conforming Uses: Through Part (C)(5)(a)(2). An important part of this assignment is to read the San Diego Municipal Code provisions in the Supplement, at pages 67-68, dealing with non-conforming uses.  As you read these statutory provisions, carefully identify the purpose of each and every paragraph.  Put a “title” on each paragraph describing the substance of the paragraph.

                                      i.        Read PA Northwestern Distributors, Inc. v. Zoning Hearing Board at pages 945-950.  Pay close attention to the concurring opinion of Judge Nix.

13.          Thursday, February 14:

a.    Variances: Through Part (C)(5)(b)(2)

                                      i.        Commons v. Westwood Zoning Board of Adjustment at pages 954-956 and notes 1-5 following the case.

                                    ii.        Read the excerpts from the San Diego Municipal Code dealing with variances at Supplement pages 68-69.  Carefully identify the purpose of each and every paragraph.

                                   iii.        Make sure you are prepared to distinguish between:

1.    Non-conforming uses.

2.    Variances

3.    Special Use Exceptions

b.    Conditional Use Permits:

                                      i.        Through Part (C)(5)(c)(2) -- Cope v. Inhabitants of the Town of Brunswick at pages 959-961 and the notes following the case.

                                    ii.        Read the excerpts from the San Diego Municipal Code dealing with conditional use permits at Supplement pages 70-72.  Carefully identify the purpose of each and every paragraph.

Tuesday, February 19: -- No Class – President’s Day Holiday

14.          Thursday, February 21:

a.    Due Process Revisited:

                                      i.        Part (C)5(d) -- State v. City of Rochester at pages 962-963 and notes 1-4 following the case.

1.    Note:  This case focuses on the Due Process clause.  As we’ve seen in the past, when applying the Due Process test, courts normally grant legislation a “presumption of validity.”  In some cases courts may not be willing to grant this level of deference to the legislature.  In the case of State v. City of Rochester pay attention to whether the court honors the “presumption of legislative validity” or whether the court is willing to substitute its own judgment about what is (or is not) in the public health, safety and welfare.

2.    Pay close attention to notes 1-4 following State v. City of Rochester.

b.    Introduction to Landlord & Tenant Law: Through Part II(A)(3)

                                      i.        Read the landlord and tenant materials at Supplement pages 73-82. Carefully read the excerpts from the California Civil Code at page 82. Bring to class  pages 75-82 entitled "Common Law Tenancies."

                                      i.        Pages 421-423 and 428-431. Garner v. Gerrish at pages 423-425 and notes 1-3 following the case.  In Garner what leasehold estate was created?

                                    ii.        Distinguish the characteristics and methods of creation of the leasehold estates:

1.    Estate for years

2.    Periodic estate

3.    Tenancy at will

4.    Tenancy at sufferance

15.          Tuesday, February 26:

a.    Introduction to Landlord & Tenant Law: Through Part II(A)(3)

                                      i.        Read the landlord and tenant materials at Supplement pages 73-82. Carefully read the excerpts from the California Civil Code at page 82. Bring to class pages 75-82 entitled "Common Law Tenancies."

                                   iii.        Pages 421-423 and 428-431. Garner v. Gerrish at pages 423-425 and notes 1-3 following the case.  In Garner what leasehold estate was created?

                                   iv.        Distinguish the characteristics and methods of creation of the leasehold estates:

1.    Estate for years

2.    Periodic estate

3.    Tenancy at will

4.    Tenancy at sufferance

b.    Holdover Tenants: Through Part A(4).

                                      i.        Read pages 427-428 and the case of Crechale & Polles, Inc. v. Smith in the Supplement at pages 77-81. In Crechale the original five-year estate for years terminated on February 6th: What estate was created after termination of the five-year estate for years? When was the estate created and how long did it last?

c.    The Tenant's Obligations & The Landlord's Remedies: Through Part B(1)

                                      i.        Care of the leased premises and duty to repair. Pages 504-508.

16.          Thursday, February 28:

a.    Holdover Tenants: Through Part A(4).

                                      i.        Read pages 427-428 and the case of Crechale & Polles, Inc. v. Smith in the Supplement at pages 77-81. In Crechale the original five-year estate for years terminated on February 6th: What estate was created after termination of the five-year estate for years? When was the estate created and how long did it last?

b.    Care of the leased premises and duty to repair. Pages 504-508.

c.    Part (B)(2): Unlawful Detainer Summary Proceedings:

                                      i.        The obligation to pay rent and the landlord's right to summary proceedings for possession (the right to "evict" the tenant):

                                    ii.        Read Supplement pages 83-84 and Lindsey v. Normet at Supplement pages 85-94; D&K pages 467-469 and 479-480.

                                   iii.        The California Unlawful Detainer Proceeding

1.    Read California Code of Civil Procedure 1161 and identify the grounds that must be satisfied for a plaintiff to qualify to use summary proceedings.

2.    State of California Official Judicial Council Unlawful Detainer Complaint.

3.    State of California Official Judicial Council Unlawful Detainer Answer.

4.    State of California Official Judicial Council Unlawful Detainer Summons

                                   iv.        Question & Challenge:  Read California Code of Civil Procedure 1161.  Assume that a residential tenant in California, Tim, defaults in the payment of rent on April 1st.  The landlord, Lisa, wants to evict Tim from the apartment. What’s the shortest possible time until Lisa can legally re-enter the leased premises using Unlawful Detainer proceedings under CCCP 1161.  To be eligible for a small prize (and ½ of a “push point”), email me with the correct conclusion with an explanation of the time periods involved. The email must be received by Wednesday at 2:00 pm.  You will need to look at some other provisions of the California Code of Civil Procedure.  Here’s a link to all the relevant sections:  CCCP Excerpts  You must work on this project independently& cannot consult with other students or lawyers. There are two hypos you should answer:

                                    v.        Assume the tenant does not answer the complaint.

                                   vi.        Assume the tenant does answer the complaint and seeks a hearing.  There will not be a summary judgment motion. 

17.          Tuesday, March 5:

a.    Unlawful Detainer Summary Proceedings:

                                      i.        Review Supplement pages 83-84 and Lindsey v. Normet at Supplement pages 85-94; D&K pages 467-469 and 479-480.

                                    ii.        The California Unlawful Detainer Proceeding

1.    Read California Code of Civil Procedure 1161 and identify the grounds that must be satisfied for a plaintiff to qualify to use summary proceedings.

2.    State of California Official Judicial Council Unlawful Detainer Complaint.

3.    State of California Official Judicial Council Unlawful Detainer Answer.

4.    State of California Official Judicial Council Unlawful Detainer Summons

b.    The Tenant's Obligations & The Landlord's Remedies: Part B(3).

                                          i.    Abandonment, surrender and liability for damages: Read Supplement pages 95-97; Sommer v. Kridel at pages 469-475 and notes 1-2 following the case.

1.    Notes & Questions: Sommer v. Kridel focuses on the issue of whether or not landlords have to mitigate damages when a tenant breaches the lease and vacates the premises.  The traditional rule was that tenants remained liable for the rent even though the landlord could easily mitigate the harm by re-leasing the premises to a new tenant.  Read the material in the Supplement carefully for insights about the doctrine of mitigation and the related doctrines of surrender, acceptance of surrender, and re-letting for the tenant’s account.  The modern trend is to require residential landlords to mitigate damages.  What should the outcome be if the landlord has many vacant units?  In Sommers v. Kridel, Kridel’s rent was $345 per month.  What if there are 5 vacant apartments for rent at $345/mo.? Must L still mitigate?  How much can L collect if the apartment is vacant for six months after T abandons?

                                    ii.        Carefully read §1951.2 and 1951.4 of the California Civil Code (in the Supplement at pages 97-98).  How do these provisions affect the common law “no mitigation” rule in the State of California? Apply §1951.2 to this question: Tenant had a three year lease (36 months) at $1,000 per month. Tenant failed to pay rent for January & February and abandoned the premises on March 1st, with 30 months remaining in the term. The FMRV is $900/mo.  If Landlord obtains a judgment against Tenant on May 1st, how much does L get to collect? (Ignore “worth at the time of the award” interest & reducing to current value). 

18.          Thursday, March 7:

a.    Part II(C)(2) - Quiet enjoyment and constructive eviction.

                                      i.        The common law background: re-read Supplement pages 73-74 and Supplement pages 99-100.

                                    ii.        Read page 482 and Reste Realty Corp. v. Cooper at pages 483-489 and notes 1-4 following the case.  When reading Reste keep in mind the following questions: 

1.    In Reste, Mrs. Cooper asserted that her obligation to pay rent under the lease terminated because of a “constructive eviction.”  What is “constructive eviction?” 

2.    Why is constructive eviction a dangerous remedy for tenants?

3.    In Reste, what is the second theory that Mrs. Cooper could have used (not constructive eviction) to argue successfully that her lease terminated and, therefore, she was not liable for rent?

b.    Implying Covenants: Part C(3).

                                      i.        The Covenant to Deliver Possession on the First Day of the Term: Read Hannan v. Dusch at pages 438–441 and notes 1-3 following the case. When reading Hannan, make sure you determine which covenant in the lease the tenant is asserting was breached.  Was the covenant express or implied?

                                    ii.        Answer the following question:

1.    On August 1st, Tenant leased a residential apartment, for a 1 year term commencing September 1st. On September 1st, Tenant showed up with a moving van, pets & children.  Unfortunately, there was a prior tenant still in occupancy and that prior tenant shows no signs of leaving.  It will take, at a minimum, 2 months and $2,000 to evict him using unlawful detainer proceedings.  If she puts up a good defense, it will take $5,000 and 4 months.  Can Tenant treat the landlord as having breached an implied covenant to deliver possession on the first day of the term – and terminate the lease and find other premises for the rest of the year?  If we follow the decision in Hannan v. Dusch, Tenant will be unsuccessful.  Can you identify at least three ways to factually distinguish Hannan.  

c.    Part C(4): Illegal Leases

                                      i.        Read the notes about Brown v. Southall Realty Co. at page 492.

19.          Tuesday, March 12:

a.    Part C(4): Illegal Leases

                                      i.        Read the notes about Brown v. Southall Realty Co. at page 492.

b.    Part C(5).  The implied warranty of habitability.

                                      i.        Read Hilder v. St. Peter at pages 493-499 and notes 1-3 following the case. Do problem 4(c) at page 502. When reading Hilder and the notes following the case, concentrate on these questions. 

                                    ii.        Carefully read California Code of Civil Procedure §1174.2 at page 100 of the Supplement.

                                   iii.        Review the State of California Official Judicial Council Unlawful Detainer Answer.

c.    Landlord’s Defaults & Tenant’s Remedies:

                                      i.        Retaliatory eviction. Read the notes on retaliatory eviction at page 503.

                                    ii.        Read the California “Repair and Offset” statute.  What rights are given to the tenant under this statute?  Review part 3 of the California Unlawful Detainer Answer.

                                   iii.        Read the City of S.D. Good Cause for Termination Ordinance and excerpts from the article in the Union Tribune.  The ordinance was supposed to give periodic tenants with month to month leases some protection from termination of their leases.  For instance, Flo is 50 years old and has lived in the same apartment for 20 years under a month to month lease.  The landlord now wants to double her rent or terminate her lease by sending one month’s notice.  Does the ordinance grant tenants any additional rights to prevent termination of a periodic tenancy?  Can the ordinance be raised in an unlawful detainer action for “holding over” after the landlord gives 30 days notice? Review part 3 of the California Unlawful Detainer Answer.

20.          Thursday, March 14:

a.    Assignments & Subleases: Through Part D(3).

                                      i.        Read Supplement pages 102-103.

                                    ii.        Ernst v. Conditt at pages 442-447 and notes 1-3 following the case. Re-read carefully § 1951.4 of the California Code of Civil Procedure excerpts at Supplement page 97.

                                   iii.        Answer the hypothetical at Supplement page 104.

1.    Helpful information and the answer to the hypothetical from Page 104 of the Supplement can be reached by following this link: Assignment Hypo Helpful Info

                                   iv.        Test your mastery of Assignments & Subleases by answering some questions: MSWord Format, PDF Format

21.          Tuesday, March 18:

a.    Assignments & Subleases: Through Part D(3).

                                      i.        Read Supplement pages 102-103.

                                    ii.        Ernst v. Conditt at pages 442-447 and notes 1-3 following the case. Re-read carefully § 1951.4 of the California Code of Civil Procedure excerpts at Supplement page 97.

                                   iii.        Answer the hypothetical at Supplement page 104.

1.    Helpful information and the answer to the hypothetical from Page 104 of the Supplement can be reached by following this link: Assignment Hypo Helpful Info

                                   iv.        Test your mastery of Assignments & Subleases by answering some questions: MSWord Format, PDF Format

b.    Security Deposits:  Parts C(6) and C(7) 

                                          i.    Pages 480-481 and Supplement pages 105-109. There is a written response required as part of this assignment (see page 109 of the Supplement).  Not more than one typed page.  Respond to the landlord using appropriate legal reasoning.  Make sure you carefully check appropriate statutes in the Supplement. You may find it helpful to visit the California Tenant Rights Website. You must bring a hard copy to class with your student i.d. on the top. If you won’t be attending class, email a copy to me prior to the start of class.

c.    Question: You moved out of your apartment two weeks ago, after fully cleaning the apartment. You returned the apartment in the same condition you received it, except for ordinary wear & tear. The landlord has refunded your security deposit but kept $250 as a “cleaning fee.”  The landlord’s letter to you states: “It is our policy to pay a professional cleaning service to clean all apartments prior to re-leasing them to the next tenant.  Enclosed is a receipt from Acme Cleaning Corp. for the $250 fee for cleaning your apartment.”  Is the landlord acting properly or do you have the right to the return of $250 plus interest and, perhaps, punitive damages? (You don’ need to submit a written response to this question.  Just be prepared to answer the question.)

22.          Thursday, March 20:

a.    Assignments & Subleases

                                      i.        Make sure you review:

1.    The Assignment Hypo Helpful Info

2.    Assignment of lease questions: MSWord Format, PDF Format

b.    Security Deposits:  Parts C(6) and C(7) 

                                      i.        Review pages 480-481 and Supplement pages 105-109.

                                    ii.        Question: You moved out of your apartment two weeks ago, after fully cleaning the apartment. You returned the apartment in the same condition you received it, except for ordinary wear & tear. The landlord has refunded your security deposit but kept $250 as a “cleaning fee.”  The landlord’s letter to you states: “It is our policy to pay a professional cleaning service to clean all apartments prior to re-leasing them to the next tenant.  Enclosed is a receipt from Acme Cleaning Corp. for the $250 fee for cleaning your apartment.”  Is the landlord acting properly or do you have the right to the return of $250 plus interest and, perhaps, punitive damages? (You don’ need to submit a written response to this question.  Just be prepared to answer the question.)

c.    Introduction to Real Estate Transactions:

                                      i.        Parts III(A)(1)-(3). 1. Introduction. Supplement page 110; Pages 517-520, 529-530, 541-542, 552-553 and 563-564. 

d.    The Contract of Sale & Marketable Title:

                                      i.        Read the Contract of Sale at pages 520-528.

                                    ii.        Pages 546-548.

23.          Tuesday, March 25:

a.    The Contract of Sale & Marketable Title:

                                      i.        Read the Contract of Sale at pages 520-528.

                                    ii.        Pages 546-548.

b.    Lohmeyer v. Bower at pages 548-550 and notes 1-3 following the case.

                                      i.        Question for Class: All real estate professionals, title companies and mortgage companies consider this case to be an anomaly.  The court makes a serious error.  What is wrong with the logic of the court?  It will help if you read closely Paragraphs 5 and 16(c) of the Standard California Residential Real Estate Contract at pages 117-125 of the Supplement (also available via this link)

c.    Deeds & Deed Delivery -- Part III(A)(4) and (A)(5): It will be helpful if you use some secondary resource to master the rules of deed delivery.

                                      i.        The Necessity of a Deed; Form of Deeds. Pages 585-590. Read the California statutory provisions at Supplement pages 111-112.

                                    ii.        Delivery of the Deed. Read note 2 on pages 605-606 Read the pre-case text and the case of Rosengant v. Rosengant at pages 609-614, and note 1 following the case..

d.    Respond to the following “Delivery of the Deed” hypotheticals: PDF Delivery of the Deed Hypos, MsWord Delivery of the Deed Hypos. There will be a modest prize for anyone who answers all of the questions correctly.  To participate in the contest, email me your answers no later than 2:00 pm the day before class.

24.          Thursday, March 27:

a.    Final Exam Information

b.    Deeds & Deed Delivery -- Part III(A)(4) and (A)(5):

                                      i.        Review the Responses to the Delivery of the Deed Hypos.  If you submitted an answer to the challenge and answered all the questions correctly, please let me know so that I can put you on the prize list.

c.    Part A(6) – Warranties of Title in Deeds

                                      i.        The warranties: Review pages 585-590.

                                    ii.        Brown v. Lober at pages 591-593 and notes 1-2 following the case.

1.    Why didn’t the Brown’s win on the claim for breach of the Warranty of Seisen (“I have good title” – a “present” warranty)?

2.    Why did the Brown’s lose in this action to recover for breach of the covenant of Quiet Enjoyment?

                                   iii.        The damages:  Note 4 at page 599.

d.    Who can enforce warranties of title (future v. present warranties): 

                                      i.        Read the paragraph at the bottom of page 599 and notes 2-4 at pages 604-605.

                                    ii.        Respond to the Following Hypothetical:  In 1998, Ann conveyed Blackacre to Bob, using a Full Warranty Deed.  In 2000, Bob conveyed to Carl, using a Quitclaim Deed.  In 2010 Carl conveyed the property to Donna, using a Full Warranty Deed.  In 2011 it was discovered that Xavier is the true owner of the Blackacre since 1999.  Ann’s title was defective. The land is vacant but very valuable. In 2012, Xavier brings an action and evicts Donna. There is a 10 year statute of limitation for enforcement of covenants.  Will Donna succeed in a law suit against Ann, Bob or Carl for breach of deed covenant?

e.    Title Insurance:

                                      i.        Supplement pages 113-114. D&K page 645, pages 714-715 and notes 1-3 on page 721.

25.          Tuesday, April 3:

a.    Who can enforce warranties of title (future v. present warranties): 

                                      i.        Read the paragraph at the bottom of page 599 and notes 2-4 at pages 604-605.

                                    ii.        Respond to the Following Hypothetical:  In 1998, Ann conveyed Blackacre to Bob, using a Full Warranty Deed.  In 2000, Bob conveyed to Carl, using a Quitclaim Deed.  In 2010 Carl conveyed the property to Donna, using a Full Warranty Deed.  In 2011 it was discovered that Xavier is the true owner of the Blackacre since 1999.  Ann’s title was defective. The land is vacant but very valuable. In 2012, Xavier brings an action and evicts Donna. There is a 10 year statute of limitation for enforcement of covenants.  Will Donna succeed in a law suit against Ann, Bob or Carl for breach of deed covenant?

b.    Title Insurance:

                                      i.        Supplement pages 113-114. D&K page 645, pages 714-715 and notes 1-3 on page 721.

c.    Part B(1) –  Security Interests in Land:

                                      i.        Introduction to Mortgages.  Read pages 616-621 (including problems on pages 620-621).

                                    ii.        Installment Sales Contracts: Read the text at the bottom of page 639-640.

d.    Part C(1) & (2) – Recording Acts. 

                                      i.        Pages 645-651 and 658-660.

                                    ii.        Pages 667-669 (do problem 2 on page 669). Read the Recording Acts at pages 668-669 very carefully

                                   iii.        Does California have a “race,” “race-notice,” or “notice” statute?  California Civil Code § 1214 & § 1217 provide: 

1.    1214: Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded. . . 

2.    1217.  An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.

26.          Thursday, April 5:

a.    Part C(1) & (2) – Recording Acts. 

                                      i.        Pages 645-651 and 658-660.

                                    ii.        Pages 667-669 (do problem 2 on page 669). Read the Recording Acts at pages 668-669 very carefully

                                   iii.        Does California have a “race,” “race-notice,” or “notice” statute?  California Civil Code § 1214 & § 1217 provide: 

1.    1214: Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded. . . 

2.    1217.  An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.

b.    Constructive Notice by Possession.  Read Note 6 on page 693 and the case of Waldorff Ins. & Bonding, Inc. v. Eglin National Bank at pages 697-700.  Read problems 1-3 following the Waldorff case.

c.    Title Indexing. Pages 645-651, 658-660.

27.          Tuesday, April 9:

a.    We will review Set #1 Multiple Choice Questions together.  Additional multiple choice questions can be found here: Set #2  Multiple Choice Questions . See Links & Reference Materials below for the Answers.

b.    Feedback & evaluations