Sandler v. Commonwealth Case Brief

FACTS
-P injured when he fell off bicycle attempting to pass through tunnel which is controlled by the government (city of Cambridge, MA).

ISSUE
-Was the D (government's) conduct in not maintaining the bikeway reckless or wanton?

HOLDING
-No.

RULES
-Reckless conduct = failure to act, if there is a duty to act, as well as affirmative conduct.
-Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another.

ANALYSIS
-Court here says that the D and employees were aware of risk of harm that was created by an unlit tunnel with missing drain covers.
-Here, however, the degree of risk is not the same as the standard that the court establishes for reckless.  This is more on the line with negligence.

Creasy v. Rusk Case Brief

FACTS
-Nursing assistant kicked by patient when she was trying to put him to bed. 

ISSUE
-Do adults with mental disabilities have the same general duty of care towards others as those without disabilities?

HOLDING
-Yes
-Here, however, due to policy considerations, the duty did not exist.

RULES
-The general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities.

ANALYSIS
-Court looks at relationship between the parties, reasonable foreseeability of harm to the person injured, and public policy concerns.

Poyner v. Loftus Case Brief

FACTS
-Personal Injury action involving blind man who walked off elevated walkway. 

PROCEDURAL HISTORY
-P found contributory negligent

ISSUE
-Is a blind man contributory negligent in injuries sustained in an accident in which he fell off a walkway?

HOLDING
-He was contributory negligent due to not using a seeing eye dog or a cane.

RULES
-A blind man must exercise due care in using public walkways commensurate with the known or reasonably foreseeable dangers.
-Due care is such care as an ordinary prudent person with the same disability would exercise under the same or similar circumstances.

Robinson v. Lindsay Case Brief

FACTS
-Action seeking damages brought on behalf of 11 year old P who lost thumb when 11 years old in snowmobile accident.

ISSUE
-Child's operation and resulting injuries using a snowmobile as an inherently dangerous activity.  Is the child liable for those injuries?

HOLDING
-Yes, when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care.

ANALYSIS
-Child should be held to the standard of care of an adult in this case.

Cervelli v. Graves case brief

FACTS
-personal injury suit
-pick up truck driven into P by cement truck driven by D's employee.

PROCEDURAL HISTORY
-jury found no negligence on D, P appeals.

ISSUE
-Did court err in instructing the jury that it was not to consider a person's skills in determining whether that person is negligent?

HOLDING
-Duh

RULES
-Although the reasonable man standard provides a minimum standard below which an individual's conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence superior to that of an ordinary man will demand conduct consistent therewith. 
-Negligence is the failure to do what the reasonable man would do under the same or similar circumstances.

Andresen v. Maryland case brief

Andresen v. Maryland  
U.S. Supreme Court, 1976

FACTS
-Fraudulent real estate lawyer is suing the State for violating his 4^th Amendment rights when the warrant specifically stated which documents could be taken, although the final clause was extremely vague, and seemed all encompassing.
-Andresen, D, was real estate attorney who was involved in fraudulent sale of property, namely Lot 13T. The officers had probable cause and obtained a warrant to search defendant's law office and his company's office. The officers seized documents from the defendant's offices and these documents were used to convict the defendant. The defendant appealed under the 4th Amendment.
-The warrant specifically stated what documents could be taken, although the final clause was extremely vague, and seemed all encompassing.

PROCEDURAL HISTORY
-Court of appeals found that the vague phrase to be specific enough, considered in the totality of the document.

ISSUE
-Whether the D’s 4^th amendment rights were violated when warrant specifically stated what documents could be taken, although the final clause was extremely vague, and seemed all encompassing.

HOLDING
-The D’s 4^th amendment rights were NOT violated when the warrant specifically stated what documents could be taken, although the final clause was extremely vague, and seemed all encompassing.

ANALYSIS
-The warrant had an exhaustive list of things that could be seized, but a vague phrase, “together with known fruits of crime at this time unknown.”
- This is just unclear but obviously refers to only the Lot 13 case when read in the totality of the document.

RULES 
General warrants are prohibited by the 4^th Amendment.
-“Makes general searches impossible and prevents the seizure of one thing under a warrant describing another.  Nothing is left to the discretion of the officer executing the warrant.

DISSENT
-“Nothing is left to the discretion of the officer executing the warrant.”
-The overwhelming quantity of seized material was either suppressed or returned to the ?. This shows an abusive search.

Groh v. Ramirez:
-Warrant had no specifics on it, but the application to the magistrate was very specific.
-Supreme court held it was impermissible based on the 4^th amendment, but COULD have been permissible if it incorporated the affidavit by reference.

Anderson v. Superior Court case brief

Anderson v. Superior Court (1947)

FACTS

-D, Anderson, worked with a doctor who performed illegal abortions. 

-The defendant received a fee from the doctor for going around and referring the women who wanted abortion to this doctor. 

-Grand jury indicted the defendant for the conspiracy to commit illegal abortions and for substantive offenses of several abortions committed by the doctor. 

-The defendant argues that she can not be prosecuted for the substantive offenses.

ISSUE

-Can the defendant be charged with conspiracy to perform illegal abortions as well as for the other offenses charged?

HOLDING

-Yes

ANALYSIS

-The defendant knew that the doctor was performing illegal abortions and she still decided to join him. 

-The court held that by joining the conspiracy, she became responsible for the substantive offenses committed as part of that conspiracy.

Alabama v. Shelton case brief

ALABAMA v. SHELTON
122 S.Ct. 1764 (2002)

FACTS

-Shelton, D, is an indigent charged with a misdemeanor (third-degree assault) punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel.  

-D was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing D on probation for two years.  

-Court followed Scott v. Illinois (1979) in that counsel need not be appointed when the D is fined for the charged crime, but is not sentenced to a term of imprisonment.

ISSUE

Whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in D’s situation?

HOLDING

Yes. A suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the D was accorded “the guiding hand of counsel” in the prosecution for the crime charged.

RULES

Actual imprisonment:  a penalty different in kind from fines or the mere threat of imprisonment, and is the line defining the constitutional right to appointment of counsel in nonfelony cases.

ANALYSIS

Argersinger applies to Ds who receive suspended sentences rather than actual incarceration.  A suspended sentence is a prison term imposed for the offense of conviction.  Once the prison term is triggered, the D is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point results in imprisonment – the actual deprivation of a person’s liberty.  Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton’s circumstances faces incarceration on a conviction that has never been subjected to “the crucible of meaningful adversarial testing.”

DISSENT

-A suspended sentence does not require the appointment of counsel because such a step does not deprive a D of his personal liberty.  Only if the sentence is later activated, need the Court ask whether the procedural safeguards attending the imposition of Shelton’s sentence comply with the Constitution. 

If you enjoyed this case, you may also enjoy our Criminal Law Outline. 

Transfer Questions

Sometimes people e-mail me with questions about transferring law schools.  I posted a short article below, but generally I help people out here by answering there questions.  I realize that many of my readers may have questions about changing their law school, so hopefully these answers will help you.  If you are interested in transferring schools, please e-mail me at worldtravelinglawstudent@gmail.com and I will answer your questions on this blog. 
---
Hello,
I’m going to a TTTT in Illinios with a considerable scholarship. I had a good GPA in my undergrad (3.6) and a 159 on my LSAT.
I got my Fall grades back and I got a 3.5, top 9%.  I would like to transfer to a higher ranked school but wonder if it would be worth giving up a scholarship for.  I would have a lot more debt I realize.

Thank you,
Paul
--
Dear Paul,

I have heard many stories of people transferring law schools and many are happy with their choice, but some, from time to time, do regret it.  When you transfer you will lose the connections and friends that you have made during your first year.  You may also have to settle in a new city you are unfamiliar with.  The great majority get no funding at all from the school.  In fact, getting scholarship aid as a transfer student is very rare.  That being said, you are right that you will lose your scholarship money and have to take on a great deal of debt. 

Also, you do not mention any schools that you are interested in.  Do you know of any schools that you would like to transfer to?  With your high rank there is no reason why you could not move into the first tier.  However, that is dependent on how well you do your second semester.  However, for many that do well in the first semester, they do well in the second semester as well.  Some, however, let the fear of falling in rank consume them. 

The top 9% is really good.  You may or may not be able to get into a top 14 school, but schools such as Boston University or UC Hastings, Fordham, and UCLA may be worth looking into.  Again, I would like to know what your targets are.  You could also try early decision for Georgetown. 

You should be working on getting letters of recommendation now if you are planning early decision.  If you plan on waiting, you can wait a couple months to get the letters, but do not do it last minute.  Professors often would rather write you a letter when they are not grading finals.  Also, they will be swamped with requests around finals time, as a lot of people try to transfer out of lower ranked schools.

Good luck to you, no matter what route you choose.

Advice: Transferring Law Schools

"Should I transfer law schools?"

When I first started law school I went to a lower ranked tier 4 (T4) school.  I applied late, only took the LSAT once, and did miserable on it.  In fact, to be honest, my score was 153.  I did not practice, study, or put the effort that was needed into taking the LSAT.  Although my LSAT score was a bit above average, I still failed as far as law school was concerned.

My GPA in undergrad was a 3.2.  This is an alright GPA.  I majored in Economics, however, not a hard science.  So, my GPA was seen as somewhat low.  Also, I reported classes I took at a community college, which factored into my GPA.  These brought the 3.2 down to under a 3.0.  So, as you can tell, I was not destined to go to a top law school.  Thus, I was stuck with three options.  Golden Gate University, New England Law: Boston, and Western New England.  My goal was to go to a top school.

There was hope:  Transferring Law Schools.

I realized early on, by reading law school forums and articles, that I could transfer to a higher ranked law school.  Now, rank is not everything, but to employers, law school rank matters.  In fact, the U.S. News and World Report's law school rank is very important to employers.  It is one way in which they can gauge the influx of lawyers who are all clamoring for jobs.  In short, you should be at least somewhat concerned about your schools rank.  I know I was. 

Further, as a law student in a ranked school (generally top 100), you will notice that once rankings come out, many of your fellow students will be obsessed with how the school moves on the rankings.  Moving in or out of the top 14 (T14) or the top 50 is a big deal for many schools.  However, with that in mind, it's not as serious as students and others generally make it out to be.

"How can I transfer law schools?"

So, the next question was: How do I go about transferring law schools?

Now, if you were like me, you may think that your undergraduate credentials do not allow you to go to the highest ranked school.  You may be stuck with only a 3rd (T3) or 4th tier (T4) school.  My only options were 4th tier schools.  I also really wanted to go to law school.  Now, I should have just retook the LSAT, but I did not.  First, I did not think I would do much better than a 153, and second, a did not have a lot of time to retake it.  I thought that it would not matter.  Later on, I realized that I should have made time to retake the LSAT, and I should have studied my rear off.  If I would have got a few points higher, I could have probably got into a second tier school.  Had I done much better, I could have possibly got into a top tier school.  However, when I realized this, I had already begun my studies and my only option was preparing for transferring.

"Where do I need to rank to transfer law schools?"

In order to transfer you should,

• Be ranked at least in the top 20% of your class (even though you may be a bit lower ranked and be able to make a move.  My school at the time curved at an 80, or a B-.  I knew students with B-'s in some classes transfer to some good schools.  With that in mind, you must realize that your school's curve may make your GPA look somewhat low, but it's the rank that matters.

• Have good references ready.  Professors who you know decently, went to talk to in their offices, and who you got good grades from (think B+ to A, depending on how your school curves). 

• Also, having a summer internship lined up helps somewhat, as it shows that you are more likely to find a job after graduation, which is important to schools as far as their rank is concerned.  Summer internships are generally easy to get (law firms are getting free labor), so this should not be a problem for most individuals. 
  
• Your LSAT score doesn't matter.  The point of the LSAT score is to give the school an idea of how likely you are to succeed in law school.  Once you have actual hard evidence (grades and rank), schools probably won't look at the LSAT.  Keep in mind, however, some schools state that transfer students should have credentials that would have made them competitive for admissions originally.  I have seen people transfer to schools they would have had no chance in going had they applied there with their LSAT and undergraduate GPA.  Further, I transferred to one of these schools and literally had a snowball's chance in Hades of originally getting in.

Now, your main task, and the hardest task is going to be getting that high rank.  Almost everyone is going to be very concerned with their rank, especially at a T3 and T4 school.  Even at a T2 school there will be people trying to transfer.  So if you are at a T2 school, be prepared to hustle.

"How can I be successful in law school?"

Law school is different than undergrad.  You are given a huge book and have very little idea of what you will be tested on.  There is a strategy that I used in order to reel in excellent grades during my first year of law school.

1.  Take excellent notes as you read.
2.  Don't go to the next case until you understand the case fully that you just read.
3.  Don't miss class.
4.  Don't surf the internet or chat during class.
5.  Try to enjoy your studies.
6.  Don't focus too much on supplements.
7.  If your professor wants you to read something, read it.
8.  Diagram and make note cards.
9.  Don't focus too much on the competition.
10.  Don't feel the urge to answer every question in class (aka, don't be a gunner).
11.  Find and take the practice tests.
12.  If a professor hands out questions, treat them as if they were graded and type them out and understand them.  Also, visit office hours and talk about your answers to those questions.
13.  After midterm exams, review those exams with your professors.  Doing this shows you are interested and helps you get a letter of recommendation.
14.  Don't hang out on sites like top-law-schools.com instead of studying.  Also, don't take everything they say there seriously.  Many of those people are the ones who you will be competing with, and many of those people will try to break you down.
15.  Don't find yourself hating your competition.

There are other points that I could make, but these are good starting points.  Also, make goals.  It helps to have an outline of goals ready to guide you in your accomplishments.  Be ready to put other hobbies aside.  Live close to the school, or if you take public transportation, study your note cards.  You can easily be in the top 10 if you give serious effort and become somewhat obsessed.  Most people won't be obsessed.  Few were as obsessed with study as I was.  I transferred from a T4 to a top school and was very proud of that move.  It made it all worth the while and, to be honest, was a wonderful feeling.  At times I was worried I would not make the cut.  You will sometimes worry too.  But if you always give it your all and don't fall behind, you will get in the top 10%.  It's not that hard as long as you understand the material and have practice answering the questions. 

Want to learn the strategies to be in the top of your class? Want to have an excellent shot of being able to transfer up the ladder of law schools? If so, there is a great new resource available!

If you have any questions about transferring, feel free to ask.  I know of many stories of people transferring from schools like Cooley to Boston University or Golden Gate University to University of Washington and Cornell.  I have helped others do it, and can give you some pointers. 

It is not as hard as one thinks to move from Cooley to University of Florida, from Brooklyn to Harvard, New York Law School to Columbia.  I have seen it done before, and there's no reason you can't do the same.

Babb v. Weemer case brief

Babb v Weemer
Ct. of App. California 1964

FACTS
Property formerly owned by Weemer.
-In 1956 she took out a promissory note with a bank on the interest of the property.  
-1958 she conveyed by grant to the Rosettes who in turn executed a promissory note and second deed. Rosettes then issued a grant deed to PL Babbs.
-1960 Rosettes conveyed the property to Babbs with a clause apart from original instrument. “Subject to encumbrances and easements of record.”

ISSUE
-Whether the implied covenant runs the land from the original grantor to the present grantee?

HOLDING
-No

PROCEDURAL HISTORY
-Summary appeal from a judgment of the Superior Court of Los Angeles County.  
-Affirmed, with penalty for frivolous appeal. Action for damages for the alleged breach of an implied covenant in a grant deed and to recover certain costs paid by plaintiffs to prevent foreclosure by defendant of a second trust deed held on the subject real property.
-Judgment for defendant affirmed.

RULES
-From the use of the word “grant,” in any conveyance, containing the following covenants, and none other, are implied, unless restrained by express terms contained in such conveyance.
-The implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on the grounds of legal necessity; (4) a promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; (5) there can be no implied covenant where the subject is completely covered by the contract."

APPLICATION
-Original grant deed by Weemer contained no specific reference to the first trust deed.  
-Here, the encumbrance of which plaintiffs complain was and is a completely valid first lien on the property representing a money loan to the prior owner. When the Rosettes acquired the property from by the grant deed which failed to mention the existing trust deed the express written contract of sale between the parties, contained in the escrow instructions, fully set forth the existence of the trust deed which was a determining factor in the purchase price. No damages for any purported breach of covenant could have been asserted then by the Rosettes, and none may be asserted now by plaintiffs who took title expressly subject to all encumbrances of record.

ARGUMENTS
P-1: (Babbs) The grant deed from Weemer to Rosettes was conveyed as though free and clear of encumbrances when it was not.  The grantor’s liability extends remote grantee, not immediate.
D-1: (Weemer) The P admitted taking the property from the Rosettes expressly, “subject to encumbrances and easements of record,” with direct knowledge of the trust deed.(First Memorandum) There can be no implied covenant where the subject matter is agreed upon.

Asotin v. Clarkston case brief

Asotin v Clarkston
Court of Appeals Washington (1970)

FACTS

-Three pieces of land were foreclosed for taxes owed by Asotin County in 1938.  

-The county then brought an action to quiet title in themselves to property described otherwise. 

-In 1940 Lewiston Clarkston conveyed property listed in Asotin county.   

-Asotin and its attorney failed to locate the recorded title, after an exhaustive search of the chain of title to no avail.  

ISSUE

Whether the land descriptions are adequate so as to support the trial court’s findings of facts and conclusions of law?

HOLDING

No. Descriptions are inadequate. 

RULES

If a person can successfully use the description given in an attempt to locate and identify the particular property sought then it is sufficient. 

PROCEDURAL HISTORY

Trial Court returned favor of Clarkston, Asotin(PLFF) appealed. Affirmed. 

APPLICATION

Adequacy of description was resolved and considered 63 years previous, when it established that a description which designates the land conveyed as a portion of a larger tract without identifying the particular part conveyed is fatally defective.

Adamson v. Hunt case brief

Adamson v. Hunt

FACTS
-P Margaret married Brian.  
-After the marriage, they wanted to purchased a four plex apartment, and put down the earnest money with Hunt (D).  
-Brian’s mother, Inez (D) advanced down payment of $5000 and was listed as a purchaser of the property.
-Seven years after the K, Brian conveyed interest to his father.  
-3 mos. later Brian and Margaret filed for divorce, with interest set aside solely to Margaret.  -Divorce decree specified that property was awarded to Margaret.      

ISSUE
Did Brain and Margaret have one half interest as tenants by the entirety, and did Inez had a one half interest individually?

HOLDING
Yes.

PROCEDURAL HISTORY
-P filed suit to determine equitable interest in a land sale contract between herself, and co-purchaser.
-The trial ct. decreed P owned 2/3 and D owned 1/3 interest and ordered an accounting and sale of those interests.  D appeals. Reversed in part.  

RULES
-The historical unity of husband and wife is apparent in the tendency of courts to award each couple only a single share under a tenancy by the entirety conveyance.

APPLICATION
-The divorce decree awarded P Margaret all rights and title to interest formerly belonging to Brian.  
-Brian and Margaret formerly owned ½ of the interest as tenants by the entirety, and thereby Margaret then owned ½ of the total interest in the property.  
-D by virtue of the deed owned the other ½  of the interest to the property.
-The concept of tenancy by the entirety is that the husband and wife are but one person in the law.                                                                                                                        

Adams v. Cleveland Cliffs Iron Co. case brief

Adams v. Cleveland Cliffs Iron Co.
Court of Appeals, MI
602 N.W.2d 215

FACTS
P's brought suit seeking damages in both trespass and nuisance for dust, noise, and vibrations coming from D’s iron ore plant.  D’s mine is in operation continuously, never ceasing.  Jury instructions in trial court instructed them on both trespass and nuisance, and jury found damages in trespass.  It did not reach a conclusion as to nuisance.

PROCEDURAL HISTORY
D appeals from a jury verdict awarding damages in trespass for intrusion of dust, noise, and vibrations. (amount of award is approximately $600K)

ISSUES
1.  Do P’s have a sustainable action under trespass?
-No.
2.  Do plaintiffs have a sustainable action under nuisance?
-Possibly (remanded).

HOLDING
Court reversed as to  finding on trespass, remanded for further proceedings regarding nuisance.

APPLICATION
-Court narrowed the definition of trespass to only include tangible trespasses, so that P could only recover under nuisance theory.  
-They wanted to avoid further confusion and delineation between the two theories because they are different and apply to different situations.  
-Court wants to ‘keep the line between the torts of trespass and nuisance from fading into a wavering and uncertain ambiguity.’  

1st Eng. Evangelical Lutheran Church v Los Angeles County case brief

1^st Eng. Evangelical Lutheran Church v Los Angeles County
482 U S 304  [1987]

FACTS

-P purchased land, operated a campground, known as "Lutherglen.” 

-The land is located in a canyon along the banks of a creek that is the natural drainage channel for a watershed area, adjoined by a National Forest. 

-In 1978, a flood destroyed Lutherglen's buildings. In response to the flood, appellee LA County, in 1979, adopted an interim ordinance prohibiting construction or reconstruction of any building/structure in an interim flood protection area that included the land on which Lutherglen had stood. 

ISSUE

Does the Just Compensation Clause require the Govt to pay for “temporary,” regulatory takings of private property? 

HOLDING

Yes

PROCEDURE

P sought reverse condemnation and tort damages from county, D moved to strike, Super Ct struck the complaint; CA appeals court Affirmed; CA Supreme Ct. denied review; Supreme Court Reversed and Remanded

RULES

-Private property be taken for public use without just compensation.  (Just Compensation Clause)

APPLICATION

“Results in an alteration in the property interest taken- from one of full ownership to one of temporary use and occupation . .” require that “compensation would be measured by the principles normally governing the taking of a right to use property temporarily.”  

-Temporary compensation is required for the Govt’s interference w/ the use of the property.  

-Where the burden on the property owner in extinguishing a leasehold interest for a period of years results from govt action amting to a taking, the Just Compensation clause requires that the govt pay the landowner for the value of the use during that period. “It is the owner’s loss, not the taker’s gain, which is the measure of the value.”

-Where the govt’s activities have already worked a taking of all use of property, no subsequent action by the govt can relieve it of the duty to provide compensation for the period during the taking was effective.  -Invalidation of the ordinance without fair compensation for the value of the use during the period would be constitutionally insufficient.

Plaintiff’s Argument: From 1978 until 1985 the ordinance effectively denied the Pl’s use of their property without compensation.

DISSENT

-If the sovereign chooses not to retain the regulation, repeal will, in virtually all cases, mitigate the overall effect of the regulation so substantially that the slight diminution in value cannot be classified as a taking of the property. 

-Regulatory takings and physical takings are very different.  A regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value.  Only the most extreme regulations can constitute takings.

Smith v. McEnany case brief

Smith v. McEnany

FACTS
-Lot in Boston, part was covered by a shed which was used by the D to store wagons.
-Eviction = building of permanent brick wall which encroached along the back of the shed.
-Wall was built with the P’s assent and with knowledge that it encroached.

ARGUMENTS
P: The wall only minimally interfered with the use of the premises.  The degree of interference did not cause the tenant deforcement for an appreciable amount of time.
D: The building of a brick wall upon the portion of the lot being rented under the lease = a wrongful eviction and denies the tenant enjoyment of the premises.

ISSUE
Does the encroachment by the P on the tenant’s leased lot, dispossess the tenant of the premises and thus deny the tenant enjoyment?

HOLDING
Yes, the D had the right to treat this displacement as an eviction which determined the lease.

PROCEDURAL HISTORY
The trial judge ruled that this was effectively an eviction.

RULES
-A wrongful eviction of the tenant by the landlord from a part of the premises suspends the rent under the lease.  The landlord shall not apportion [assign or divide] his own wrong.
-The rent arises out of the land, the whole rent is charged on every part of the land.

APPLICATION
-The covenant to pay rent is dependent on the covenant of quiet enjoyment.  
-If the landlord, or agent of the landlord, or someone who is claiming paramount title based on a prior conveyance from the LL evicts the T, then the T’s covenant to pay rent is suspended so long as the eviction lasts.
-The suspension of the duty to pay rent does not mean that the T is absolved from performing on other covenants, such as the covenant to repair.
-The rule does not apply to a de minimus encroachment.

Court reasoned that the main reason a wrongful eviction suspends the rent is that the enjoyment of the whole consideration is the foundation of the debt and the condition of the covenant, and that the obligation to pay cannot be apportioned.  Traditionally, rent issues out of the land, and that the whole rent is charged on every part of the land.  If the landlord withdraws part of it he cannot recover either on the lease or outside of it for the occupation of the residue.  When the tenant is admittedly evicted from any portion of the land the rent is suspended because, by the terms of the instrument as construed, the tenant has made it an absolute condition that he should have the whole of the demised premises, at least as against willful interference on the landlord’s part.  An eviction like the one here does not necessarily end the lease, or other obligations of the tenant under it, such as the covenant to repair.

Paradine v. Jane case brief

Paradine v. Jane


FACTS
-Alien army invades P’s rented land, expels him, and P could not take profits thereof.  
-P was behind on rents for the 3 year term.


ISSUE
-Should the P be required to pay rents on land that he was expelled from and not able to procure profits from?


HOLDING
-The P ought to pay his rent.


RULES
-There is an implied covenant to pay rent by the tenant to the landlord.
-The landlord, likewise, has a covenant which is the covenant of quiet enjoyment.  This is a promise not to interfere with the tenant’s possession of land during the term of the lease.


APPLICATION
-The court stated that as the P had the advantage of casual profits, he should also run the hazard of casual losses.  
-Rent rises out of the land, there is a duty to pay rent even if the land itself is dangerous.

Gillmor v. Gillmor case brief (45 Cal.2d 145)

Gillmor v. Gillmor
45 Cal.2d 145

FACTS

-One party ousted the other from possession.  

-33,000 acres, large parcels

-D obstructed P from exercising right to occupy land in which she owned an undivided interest w/ D and another.

-Frank gave to sons (D - 1/4th) and (C. Frank - 1/4th) and Edward gave his half to the P, a tenancy in common.

PROCEDURAL HISTORY
-May 1979:  P filed suit for accounting and damages for D’s exclusive use of property since Jan. 1, 1979.  

-Separate suit for partition of common properties.

-At appeal, D argues: 1.  Re: 2nd judgment, no evidence of finding on ouster.  2.  even if an ouster; damages are excessive.

RULES

-A co-tenant may sue for his share of the rents and profits from common property if he has been ousted from possession of common property.

-Mere exclusive use of commonly held properties by one co-tenant is not sufficient to establish an ouster.

-TIC has right to use and occupy entire property without liability to other co-tenants.

-Each co-tenant has the right to free and unobstructed possession without liability for rents for the use and occupation thereof.

-Can’t interfere with other co-tenants rights to likewise occupy, use and enjoy.

-Exclusive use requires an act of exclusion or use in such a nature that prevents a co-tenant from exercising his rights to the property.

(Here the P sought to graze livestock, prevented from doing so)

-Offset for repairs made on common property: where a co-tenant is in sole possession and makes repairs or improvements to the common property without consent from fellow co-tenants, he generally has no right to contribution.

-Contribution is allowed where other co-tenants have stood by and permitted harm to proceed to his detriment.

APPLICATION
-Repairs here were a necessary cost, and should be deducted from the damages awarded.

Link to Case:  45 Cal.2d 145

Delfino v. Vealencis case brief

Delfino v. Vealencis

FACTS
-D and P were both tenants in common (TIC).
-D had a garbage removal business and a dwelling, 45/144 ownership.
-P was a residential developer, developing 45 residential lots, 99/144 ownership.
-Neither the D nor the P was in actual possession of the remainder.

ISSUE
-Is a partition or sale a better option in this case?

HOLDING
Since the property in this case may be practicably be physically divided, and since the interests of all owners will be better promoted by a partition in kind, D is entitled to such a partition.

RULES
-A court of equitable jurisdiction may authorize the physical partition of any real estate held by TIC and can appoint a committee for that purpose upon complaint of any interested person.
-If in the opinion of the court, a sale of the jointly owned property will better promote the interests of the owners, the court may order a sale.  
-Partition in kind > sale.
-A sale of one’s property without his consent is an extreme exercise of power warranted only in clear cases.
-Partition by sale should be ordered when both, 1.  physical attributes of the land are such that a partition in kind is impracticable or inequitable, and 2.  interests of the owners would better be promoted by a partition by sale.  (The burden is on the party requesting the sale to prove 2.)

REASONING
-A partition in kind would be practicable.
-It is the interests of all the tenants in common that the court must consider and not merely the economic gains of one tenant, or a group of tenants.
-One tenant in this case has actual and exclusive possession of the property, derives livelihood from business on the property, has a home on the property, as has the family before him.

Brokaw v. Fairchild case brief.

Brokaw v. Fairchild

FACTS
P has a life estate.  Property in question in NYC is in a residential neighborhood by a park.
-Costs $70,542 more than if resided in apartment.
-P wants to tear down building, build apartments that would change the loss into an income of $30,000.
-States that it is in the best interest for him as a life tenant as well as inheritors and remaindermen.
-D’s state that the demolition is waste.  D’s = adult remaindermen.

ISSUE
-Can P tear down house with is a life estate, or would this be waste?

HOLDING
-P can not tear it down.  Testator passed down ‘residence’, which is not just the land.

RULES
-Life estate does not include full title and full ownership.
-Remaindermen take the interest if P’s children die without heirs.
-Remaindermen have a future interest in the house, not merely the land.
-A life estate binds the tenant, he/she has no right to exercise a right of ownership.
LAW OF WASTE:  Any act of the life tenant which does permanent injury to the inheritance is waste.
-By a lease, the use, not dominion of the property demised is conferred.

APPLICATION
-Court looked to Melms v. Pabst Brewing Co.
-In Melms, D tore down building in good faith before judgement, believing it would not merely holding a life estate.
-Area around the property was commercial, no longer residential.  Isolated, alone, surrounded by railroad tracks.
-Estate of P’s were substantially increased, no way injured thereby.
-Here there were changes of condition that none could control.  (This was different than in the Brokaw case).

City of Klamath Falls v. Bell case brief

City of Klamath Falls v. Bell

FACTS
-1925: a corporation gift deeded land to the City of Klamath Falls “as long as” the city used the land for a library, and thereafter unto Fred Schallock and Floyd Daggett, their heirs and assigns.
-City closed the library in 1969 when the books were moved to another library. Thereafter, the city sued to quiet title in fee as to the land.
-D’s were all of the heirs of Schallock and Daggett. The grantor corporation, Daggett-Schallock Investment Company had been dissolved and the assets (including any interest in the property) were transferred to Fred Schallock and Floyd Daggett. Thereafter, all of the remaining heirs transferred their interest, if any, in the property to Defendant Marijane Flitcraft.
PROCEDURAL HISTORY
The trial court found for the city based on its finding that the gift over to Fred Schallock and Floyd Daggett was void under the rule against perpetuities. The Defendants appealed.

RULES
-Executory limitation violates the rule against perpetuities.
-Rule against perpetuities is a limit on the grantor to give gifts to ‘remote parties’.  (I.e., people not in existence).
-The rule’s purpose is to defeat the intent of the grantor; if anything could defeat the rule, it does.
-Only an executory interest can follow a grant in fee simple.
-“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

APPLICATION
-The language of the deed passed to the city a fee simple determinable in the land. That is true due to the use of the specific words of “as long as.”  
-Court found that the breach of the condition causes the fee simple to terminate automatically.
-The language of the deed which called for the gift over in case of breach of the condition of use to be made to Fred Schallock or Floyd Daggett or their heirs and assigns was an attempt to convey an executory interest.
-The rule against perpetuities applies to executory interests.  In this case the city might have used the land for a library indefinitely which would make the gift over to Fred Schallock and Floyd Daggett void ab initio.  This violated the Rule against Perpetuities.
-The Court found that a possibility of reverter was retained by the grantor corporation. Oregon had a law against the alienation of possibilities of reverter. The grantor corporation did attempt to alienate the possibility of reverter through its abortive gift over the Schallock and Daggett.
-An attempt of a grantor to transfer a possibility of reverter does not cause its destruction. Therefore, the possibility of reverter was retained in the grantor, the corporation which was dissolved.
-Here, the corporation was lawfully dissolved and that all the remaining assets went to the sole shareholders, Fred Schallock and Floyd Daggett, and then, of course to their heirs and assigns. The possibility of reverter was then in the heirs who conveyed their rights to Flitcraft.