Property II Outline

Property 2
Jeffrey Kinsler
Spring 2010

Class 1

· I. Personal Property
· A. Acquisition/Ownership
· B. Custody and Care
· C. Personal/Real Property (Fixtures)
· II. Real Property—Possession/Ownership
· A. Present Estates and Future Interests
· B. Concurrent Estates
· C. Leaseholds
· III. Real Property—Use
· A. Easements, Covenants, Servitudes, and Licenses
· B. Nuisance and Trespass
· C. Support Easements and Water Rights
· D. Zoning Laws and the Takings Clause
· IV. Real Property—Acquisition
· A. Real Estate Transactions
· B. Adverse Possession

Property Torts
· Intentional Torts
· 1. Against the Person
o Battery
o Assault
o False Imprisonment
o Intentional Infliction of Emotional Distress
· 2. Against Property
o Trespass to Land
o Trespass to Chattels
o Conversion
· Defenses to Trespass to Land
· Necessity
o Public
o Private
· Defenses to Trespass to Chattels
· Recapture

Trespass to Land
· The necessary elements to prove trespass to land are (1) intent or recklessness, (2) entry by a person or thing upon land, (3) in the actual or constructive possession of another.
· A trespass also encompasses a refusal to leave after permission to remain has been withdrawn.

Problem
· 1. A and B are neighbors. B builds a small airport on B’s land. As B’s plane takes off, it does not touch A’s land, but flies over A’s house at an altitude of 100 feet. A sues B for trespass. What result? Yes, Trespass. Violated his usable property space (above and below the ground).
· 2. Same facts as No. 1, except B’s plane flies over A’s house at an altitude of 5,000 feet. No, not usable at this altitude.
· 3. Same facts as No. 1, except that no planes from B’s airport touch or fly over A’s land. However, 25 planes land and take-off from B’s airport every day (24/7). The noise, dust, and fuel odors from the flights make A’s land virtually uninhabitable and worthless. A sues B. What result? Yes, dust could be trespass. Probably not trespass, could have a claim for nuisance. Are they unreasonably and substantially interfering with your land? It’s a balance test.

Problem
· Which of the following invasions would NOT be actionable under the tort of trespass to land?
· (A) Sound engineer/computer programmer Klutzmonkey experiments with digital recording of harsh sounding musical instruments, trying to write programming code that captures the range of what the bizarre instruments produce. In these experiments, Klutzmonkey makes unpleasant sounds that disturb his neighbors…NOT A TRESPASS. Sound waves are not trespass. Has to be heavier than the air.
· (B) Motivated by malice, Yodel removes the lids of his filled trash cans and lays the cans on their sides, hoping that the wind will blow his trash onto the lawn of his neighbor. It does…YES, It’s not intentional, but it is reckless.
· (C) In a chic urban brownstone district, Adele, Bittybop and Chichi own adjacent houses. Each lot is only 20 feet wide. Adele and Chichi have been living there for years; Bittybop recently moved into the middle house. In the back of their houses, Adele and ChiChi like to toss a football from Adele’s lot to Chichi’s lot and back. Their ability to throw a football has improved, and ever since Bittybop has moved in the ball has never landed in Bittybop’s yard. YES.
· (D) The Historic Pumpkinsburg Association, Inc. (HPA) , an incorporated neighborhood association in the town of Pumpkinsburg, asked homeowner Derrick Dingaling if he would be willing to hang the HPA flag from his flagpole during Civic Pride Week, running from October 17-24. Dingaling told the HPA staff that he would be willing to fly the flag during this week provided that HPA would assume responsibility for removing that flag on October 25. It is now October 28 and HPA still has done nothing to remove the flag….YES, failure to remove.

Problem
· Ari, an amateur chemist, was working on an experiment in his home’s basement designed to extract energy from a combination of water and palladium. At one point, just after Ari carefully uncorked a glass beaker containing the water and palladium, the contents unexpectedly and inexplicably became unstable. Ari ran for cover, and the entire apparatus exploded moments later, blowing out a window and sending a cloud of toxic matter into the neighborhood. The matter was heavier than the surrounding air and soon deposited in and around the home of Curly, a nearby neighbor. Over the next several weeks, Curly became quite ill. Soon, all of his hair fell out, he gained 75 pounds, and he began to talk in falsetto. If Curly wants to sue Ari, which of the following legal claims best suits these facts?
· (A) A private nuisance action.
· (B) A strict liability action alleging that Ari is carrying on an abnormally dangerous activity. Yes, strict liability with abnormally dangerous activity (nuclear power plants, explosives, toxic chemicals). Don’t have to show any culpability, just they were injured.
· (C) A negligence action alleging that Ari unreasonably permitted the container to explode.
· (D) An action for trespass to land.

Trespass to Land – Defenses
· I. Public Necessity
· II. Private Necessity

Problem
· Elm City, a large metropolitan area, is threatened by a forest fire. To prevent the fire from spreading to densely populated parts of Elm City, the City’s fire department decides to build a fire-break in which all structures and vegetation will be destroyed. A’s home is located in the fire-break and is burned by the fire department. A sues the fire department for trespass to land. Will A prevail? Could say it is public necessity, no liability at all. With private necessity you aren’t liable for trespass but you are liable for damages you cause. There can be public necessity with trespass to chattels with a rabid dog. Private necessity is rare.

Problem
· Manu owned a factory that used toxic chemicals. One day, an employee was moving a drum of chemicals using a forklift when, due to no negligence on Manu’s part, the drum rolled off the forklift, crashed through a fence separating Manu’s land from that of Pam, who owned a soybean farm, and split open, spilling chemicals on the land and killing some of Pam’s crops. Manu immediately sent workers to Pam’s land to clean up the spill, but the heavy equipment used by the workers destroyed some of Pam’s crops that the chemical would not have damaged. Pam sues Manu for trespass to recover for the damage caused to her crops by the heavy equipment. Which of the following statements is most likely correct?…This is strict liability. The additional damage is private necessity.
· (A) Because Manu’s employees voluntarily went onto Pam’s Land, Manu is liable for trespass.
· (B) Because Manu’s conduct created the situation that made its employees’ entry necessary, Manu cannot argue that it was privileged to enter Pam’s land by the doctrine of necessity.
· (C) Because it was necessary to enter Pam’s land to minimize property damage, Manu was privileged to enter and so did not commit a trespass. Even so, it will be required to pay for the harm…YES, you have a right to go onto someone’s land to prevent further damage to their land.
· (D) Because it was necessary to enter Pam’s land to minimize property damage, Manu was privileged to enter and so did not commit a trespass. Therefore, Manu will not be required to pay for the harm.

Problem
· Lois was on a walk when she noticed a very young child lying facedown and completely still in the yard in front of Peter’s house. Believing the child was injured, Lois climbed the fence separating the sidewalk from the yard and approached him. When she touched his shoulder and asked if he was okay, the child turned over and said he was fine. Peter, the child’s father, observed this activity from his front window and became extremely frightened because he believed Lois was accosting the child. Subsequently, he sued Lois for trespass. Which of the following statements is most likely correct?…She intentionally went onto the land. Does she have a defense? Private necessity.
· (A) The action will fail because Lois’s entry onto