Nuisance
Who may bring a nuisance claim
A landowner or person with a possessory interest in land including a lessee
List the elements of AP and the majority rule for the last element
1) Actual entry
2) Continuous for the statutory period
3) Open and notorious
4) Adverse/hostile under a claim of right
Objective standard
Discuss the policy rationale behind allowing patents
Encourage contributions to creative and socially useful enterprises
What are the elements of copyright infringement?
1) Ownership of a valid copyright
2) Copying of the constituent parts
3) Improper appropriation
How does a life estate differ from a fee simple absolute
Life estates are anchored to the time a person lives while fee simple absolutes can be possessed forever
What is the majority rule for delivery of possession after signing a lease
Legal possession and actual possession must be granted to the lessee
Discuss the elements of intentional private nuisance, include the names of any relevant tests
- Substantial (Effecting a person of normal sensitivity)
- Unreasonable invasion (Restatement Test v. Threshold Test)
- Intentional
Is the following adverse possession claim likely to succeed and why? What if ouster?
A co-tenant attempts to claim sole possession of his shared property after living there for 10 years.
Likely not because co-tenants require clear & unequivocal notice of exclusive and sole title of the property.
Ouster begins the running SOL for an adverse possession claim
What are the requirements for a patent
Patentability, novelty, utility, Non-obviousness, Enablement
Discuss the policy behind allowing copyright infringement claims
Court wants to encourage development of arts sciences and creativity in presenting facts, crediting people for their original work.
O says "To A for the life of B"
A life estate measured in the lifetime of another (Life estate pur autra vie)
What is a sublease and how does the landlord's realationship fit with the subtenant?
A sublease is an independent transaction creating a wholly new and distinct LL-T relationship b/w the sublessor and the sublessee.
Landlord would still need to go after the original lessee for rent.
What are the factors included under both the restatement test and unreasonableness test?
Threshold: Extent and character of harm, social value, burden too avoid harm, suitability of use or enjoyment to the locality
Restatement: Utility, suitiability of the conduct to the locality, D's ability to prevent invasion
Discuss the policy arguments underlying adverse possession
Sleeping Theory - Punishing landowners who ignore their land (avoiding waste)
Earning Theory (Locke labor theory) - People who put work into property should be rewarded
Stability of title - Efficient way to deal with conflct establishing stability of title
What are the 4 types of inventions that can be patented?
Process, machine, manufacture, or any composition of matter
Elements of a Right of Publicity Claim
D used P’s identity
The appropriation of P’s name or likeness to D’s advantage, commercial or otherwise
Lack of consent, and
Injury
Distinguish a remainder from a reversion
Reversion: A party's automatic resulting right to possession after conveyance of a life estate
Remainder: If a party creates a future interest for a third party
Name and define the types of tenancies
Term of years - fixed duration
Periodic tenancy - Automatically renews unless proper notice is given (Example month to month)
Tenancy at will - Can be terminated by either party at any time
Tenancy at sufferance - When T stays in possession after expiration of lease
How can a court remedy a successful nuisance claim
Courts have discretion in granting injunctions, periodic damages, or creative damages
Give your recommendation regarding success for the following adverse possession claim :
A client approaches claiming they have been possessing a plot of land unbeknownst to the true owner for 7 years. They also claim the property was transferred to them 3 years ago by a party who is not the true owner.
If our client and the transferring party are in privity, the doctrine of tacking would allow you to add the 3 years onto our client's time. Therefore, they can likely establish an AP claim.
Hot news doctrine
Unless there is a protected right, others may freely imitate
In defense of an infringement claim what factors are applicable?
Fair use
Distinguish a joint tenancy from a tenancy in common
Joint tenancies require the 4 unities and have a right to survivorship that must be explicitly laid out when created
Tenancy in common happen where each co-owner of this estate holds an undivided, fractional share in the entire parcel of land; and each is entitled to simultaneous possession and enjoyment of the whole parcel
Discuss authority split on rule of "self help"
Common law
LL can use self-help to retake premises from a T in possession without liability for wrongful eviction if:
LL is legally entitled to possession, such as where a T holds over after the lease term or where a T breaches a lease containing a reentry clause, AND
LL means of reentry are peaceable – no violence (State specific, some are okay with reasonable force)
Modern trend
No right to self help
Discuss the factors for the unreasonableness test of public nuisance
Whether the conduct involves a significant interference with the public health, the public safety, the public peace OR
Whether the conduct is proscribed by a statute, ordinance or regulation, or
Whether the conduct is of a continuing nature or has produced a permanent and long-lasting effect, and , as the actor knows or has reason to know, has significant effect upon the public right.
Discuss the general rule of disabilities in relation to AP, and when may they be removed?
Disability is an exception to the AP SOL if the true owner is disabled at the time the SOL begins. (Examples: Under 18, unsound mind, prison) It allows disabled owner to have an extra specified amount of time before SOL begins to run.
Removal: Insane person dies or deemed sane, child turns 18 or prisoner released from prison
Generally how can one prove a fair housing claim
Discriminate impact or disparate treatment
Distinguish FHA and Civil Rights Act
Civil Rights Act is limited to claims based on racial discrimination
What are the different types of partition
Partition in kind and partition by sale
Name 2 of a landlord's duties to their tenants and how may a tenant proceed if any of those are breached
Covenant of quiet enjoyment
- Tenant may claim constructive eviction
Implied warranty of habitability
- T may withhold rent and possinly pursue punitive damages