1L Substantive Law Questions (Get your BLL on ITT) Forum

[2807]

Premises Liability Questions:
If a business establishment has a sign saying "Restroom for Customers Only" is a non-customer a trespasser if she used the bathroom? How about if she appears to be leaving the establishment--has her entire stay there been a trespass, or only her time in the bathroom?

So I'm confused about the analysis for this question. Let's say it's a restaurant with a sign saying Restroom for Customers Only. Does this mean the person is ONLY a trespasser in the restroom, but a licensee/invitee (depending on jurisdiction) in the rest of the restaurant?

What are the consequences if someone commits an intentional tort against them in the restroom vs. the rest of the restaurant? My guess is that for intentional torts, their trespasser status is irrelevant?

Q1: Yes, if you exceed the scope of your license or invite = you are a trespasser. This was actually tested on the CA bar not so long ago. (A pool party where the kids were told to go inside, pool closed now, and then a kid snuck back out and fell in the pool. He was a trespasser at that point)

Q2: Intentional tort against someone would just be the tort analysis, and the premise liability likely not come into play. Premise liability is only for static elements of the property, NOT for actions or activity on the property. (that can be a trick in the questions, so watch for that).

Q1: This means that the person would only be a trespasser in the bathroom, but once leaving the bathroom, they would be licensee/invitee in the rest of the establishment? After leaving the restroom, does that mean that the owner of the establishment would not have a cause of action against the trespasser? Trespassing=strict liability, does this mean that the owner could file a claim against the person for "trespassing" and using the bathroom? How about for property (toilet paper & wear and tear on bathroom--crazy and farfetched i know, but whatever)?

The problem you are creating is still going to hinge on the fact pattern and the definition of "customer." If this hypothetical person is a "customer" then = no trespass. Period.

If, somehow, the facts show that you can establish an argument that the person is capable of entering the store, and go to the restroom, without being a customer, then they are a trespasser the entire time (they are not a licensee or invitee either, right?).. But, if the shop is open to the public, then you are back to needing to use facts to show this person was not ever a customer, and therefore a trespasser at all times. That will need facts, becasue it is hard to establish otherwise. (possibly just by walking into a store open to the public.. you suffice as a customer?)<-- you would need to solve that.

Technically, if a person exceeds the scope of their permission to be on the premise, then they are a trespasser in that exceeded capacity and the duty of the owner shifts accordingly.

Yes, if they are a trespasser then you would have a claim for "conversion" of that toilet paper. Sheesh. Yep.

You would likely have a few issue statements (IRAC). One would deal with "whether X was a trespasser at all times" and the other would be "whether X was only a trespasser in the bathroom" Just use facts and law to analyze both... thats all you can do. There are no answers... only analysis.

Your fact pattern would likely involve an injury to X somewhere in the store and the owner's duty to X at that exact location. That will help you in crafting the "issue statement" as a correct legal issue and NOT a lead-in sentence to what you intend to talk about.

Onward !

[Lizard]

Property question:Under a race-notice or race statute, would a recording by a lender/mortgage agent for the entire property satisfy the recording requirement? If we know that a lender recorded the transaction (for which they backed up the entire property), is it safe to assume that the recording requirement of the property owner has been fulfilled by this 3rd party?

[Lizard]

If a zoning ordinance says that properties designated for residential purposes can only be occupied by 3 unrelated parties at a time, is a property owner allowed to rent their property to 3 unrelated parties or less? In general, is it assumed that people are satisfying the zoning requirements when they rent out properties as long as the rental parties fulfill the requirements (e.g. commercial establishment rented to business owners that comply with the zoning rules)?

This question was way longer and more convoluted than it needed to be. Sorry about that, and thanks in advance for your help!

[2807]

Property question:Under a race-notice or race statute, would a recording by a lender/mortgage agent for the entire property satisfy the recording requirement? If we know that a lender recorded the transaction (for which they backed up the entire property), is it safe to assume that the recording requirement of the property owner has been fulfilled by this 3rd party?

Are you blending the analysis for recordation of a "mortgage" and recordation of "title" ?

I think that you are.

What exactly are you looking to solve?

[2807]

If a zoning ordinance says that properties designated for residential purposes can only be occupied by 3 unrelated parties at a time, is a property owner allowed to rent their property to 3 unrelated parties or less? In general, is it assumed that people are satisfying the zoning requirements when they rent out properties as long as the rental parties fulfill the requirements (e.g. commercial establishment rented to business owners that comply with the zoning rules)?

This question was way longer and more convoluted than it needed to be. Sorry about that, and thanks in advance for your help!

Edit:
Ok, yes, the LL can rent to 3 and abide by that ordinance. Right?
And, as far as "assumed that the LL is satisfying ordinances" that would be a K issue.

Are you addressing this as a contract dispute ?

If the LL presented the property as capable for what the renter wanted, then there is a K dispute, and all of the following analysis for void, material issue, and so forth...

If it was on purpose, then you go for Tort/fraud and show facts that support that.

Hope that helps

[Lizard]

Most embarrassing question ever...how do I know if my contracts prof has been covering Article 2 vs revised Article 2? I know we were supposed to purchase a copy of the 2013 version of the UCC, but not sure if that means we are relying on the revised version...

[Easy-E]

Can someone sum up the Lochner era in one or two sentences? Or is that impossible?

[Br3v]

Can someone sum up the Lochner era in one or two sentences? Or is that impossible?

Free markets, states rights > Fed, unless the case dealt with a moral issue. Think "compassionate conservatism"

[lhanvt13]

Property Question:
Taking is allowed for people who successively possess a land and are in privity with each other. This means that the period is added onto each other to satisfy adverse possession. But doesn't constructive possession kind of make that obsolete? Constructive possession says that if the possessor has 1) color of title and 2) actual possession of part of the land, then that possessor can adversely possess the whole land. If I'm reading things correctly, it doesn't require the time period or whatnot. Because the person got the property from someone who didn't actually own the property, the document is invalid/faulty and therefore, tacking isn't necessary for adverse possession if he actually possesses.
Is this right?
I'm so confused.

tl;dr: tacking = A's years + B's years. But, B has faulty title. Constructive possession = Color of Title + actual possession. Therefore, tacking doesn't matter if B had actual possession.

[kay2016]

If anybody has/knows of any good evidence/hearsay flow charts let me know!

Not trying to reinvent the wheel if I don't have to..

[JVK]

Property Question:
Taking is allowed for people who successively possess a land and are in privity with each other. This means that the period is added onto each other to satisfy adverse possession. But doesn't constructive possession kind of make that obsolete? Constructive possession says that if the possessor has 1) color of title and 2) actual possession of part of the land, then that possessor can adversely possess the whole land. If I'm reading things correctly, it doesn't require the time period or whatnot. Because the person got the property from someone who didn't actually own the property, the document is invalid/faulty and therefore, tacking isn't necessary for adverse possession if he actually possesses.
Is this right?
I'm so confused.

tl;dr: tacking = A's years + B's years. But, B has faulty title. Constructive possession = Color of Title + actual possession. Therefore, tacking doesn't matter if B had actual possession.

I'm not sure if I'm understanding you correctly, but what it comes down to is that adverse possession always has a statute of limitations. The true owner, by taking the necessary actions, can always step in and take control of the property before that statute of limitations is up. This is where I think our understandings differ - color of title doesn't make someone the true owner, it just characterizes their adverse possession claim. An adverse possessor with color of title still has to go through the statute of limitations, it's just that some states require him to have that color of title to be able to ever successfully claim the land at the end of the SOL, etc. He can't just step in and make himself the TO, even with color of title.

It does have some real effects. Color of title only exists in some states. A majority don't care, and the ones that do apply it in different ways (e.g. a shorter statute of limitations for an AP claim, while others require it outright for AP). New York's one of the states that puts a lot of faith in the principle. But I don't know if there's any state that lets you claim the land outright and instantaneously with it... at the end of the day, good faith or not, your claim to the land's still faulty.

[Mal Reynolds]

Property Question:
Taking is allowed for people who successively possess a land and are in privity with each other. This means that the period is added onto each other to satisfy adverse possession. But doesn't constructive possession kind of make that obsolete? Constructive possession says that if the possessor has 1) color of title and 2) actual possession of part of the land, then that possessor can adversely possess the whole land. If I'm reading things correctly, it doesn't require the time period or whatnot. Because the person got the property from someone who didn't actually own the property, the document is invalid/faulty and therefore, tacking isn't necessary for adverse possession if he actually possesses.
Is this right?
I'm so confused.

tl;dr: tacking = A's years + B's years. But, B has faulty title. Constructive possession = Color of Title + actual possession. Therefore, tacking doesn't matter if B had actual possession.

Did you read Howard v. Kunto? It pretty much solves the color of title problem. In that case they didn't have color of title because their deed described a totally different plot of land, so it wasn't defective in the sense that it didn't describe ANY of the land they were adverse possessing. The court relaxed the need for color of title and just required privity of contract for tacking. Basically it would have led to very inequitable solution otherwise because the Howards would have been able to keep the land on their deed and also the land they adversely possessed if the tacking requirement was denied on the basis of color of title.

[bandenjamin]

Property Question:
Taking is allowed for people who successively possess a land and are in privity with each other. This means that the period is added onto each other to satisfy adverse possession. But doesn't constructive possession kind of make that obsolete? Constructive possession says that if the possessor has 1) color of title and 2) actual possession of part of the land, then that possessor can adversely possess the whole land. If I'm reading things correctly, it doesn't require the time period or whatnot. Because the person got the property from someone who didn't actually own the property, the document is invalid/faulty and therefore, tacking isn't necessary for adverse possession if he actually possesses.
Is this right?
I'm so confused.

tl;dr: tacking = A's years + B's years. But, B has faulty title. Constructive possession = Color of Title + actual possession. Therefore, tacking doesn't matter if B had actual possession.

I'm not sure if I'm understanding you correctly, but what it comes down to is that adverse possession always has a statute of limitations. The true owner, by taking the necessary actions, can always step in and take control of the property before that statute of limitations is up. This is where I think our understandings differ - color of title doesn't make someone the true owner, it just characterizes their adverse possession claim. An adverse possessor with color of title still has to go through the statute of limitations, it's just that some states require him to have that color of title to be able to ever successfully claim the land at the end of the SOL, etc. He can't just step in and make himself the TO, even with color of title.

It does have some real effects. Color of title only exists in some states. A majority don't care, and the ones that do apply it in different ways (e.g. a shorter statute of limitations for an AP claim, while others require it outright for AP). New York's one of the states that puts a lot of faith in the principle. But I don't know if there's any state that lets you claim the land outright and instantaneously with it... at the end of the day, good faith or not, your claim to the land's still faulty.

I could be wrong but I think constructive possession is more like a subset of adverse possession. Say A buys a 10 acre parcel from B who gives him a deed that describes the land perfectly. It turns out the B's deed is faulty and C is really the true owner.

A immediately moves on to the land, builds a house, and puts up a fence around 5 acres of the land, but does nothing with the other 5 acres (let's say it's heavily wooded). This goes on for 20 years (assuming AP limit is <20 years. C then shows up and tries to claim the 5 wooded acres saying that A never took possession of those. Because A had color of title describing the 10 acres, and successful AP on the 5 acres fenced in A will have actual title to the whole 10 acres. They don't actually get the title until after the full AP time runs.

The Tacking thing would come in to play if A after say 5 years sold to D, then 15 years later C came for the land. D could use A's 5 years to tack on for the continuous portion.
Did that answer your question?

[Mal Reynolds]

And I think constructive possession is just a stand-in for actual possession. If you have a defective document that purports to transfer title of an entire parcel, and you are only in actual possession of a portion of that parcel, then you are in constructive possession of the entire plot. It doesn't take away the time requirement, it just means you get the entire parcel, even the parts you weren't adversely possessing. Otherwise, under the traditional possession prong, you just get the part of the land you are adversely possessing, not the entire property.

ETA: I didn't seen this response, but basically this:

I could be wrong but I think constructive possession is more like a subset of adverse possession. Say A buys a 10 acre parcel from B who gives him a deed that describes the land perfectly. It turns out the B's deed is faulty and C is really the true owner.

A immediately moves on to the land, builds a house, and puts up a fence around 5 acres of the land, but does nothing with the other 5 acres (let's say it's heavily wooded). This goes on for 20 years (assuming AP limit is <20 years. C then shows up and tries to claim the 5 wooded acres saying that A never took possession of those. Because A had color of title describing the 10 acres, and successful AP on the 5 acres fenced in A will have actual title to the whole 10 acres. They don't actually get the title until after the full AP time runs.

The Tacking thing would come in to play if A after say 5 years sold to D, then 15 years later C came for the land. D could use A's 5 years to tack on for the continuous portion.
Did that answer your question?

[lhanvt13]

Property Question:
Taking is allowed for people who successively possess a land and are in privity with each other. This means that the period is added onto each other to satisfy adverse possession. But doesn't constructive possession kind of make that obsolete? Constructive possession says that if the possessor has 1) color of title and 2) actual possession of part of the land, then that possessor can adversely possess the whole land. If I'm reading things correctly, it doesn't require the time period or whatnot. Because the person got the property from someone who didn't actually own the property, the document is invalid/faulty and therefore, tacking isn't necessary for adverse possession if he actually possesses.
Is this right?
I'm so confused.

tl;dr: tacking = A's years + B's years. But, B has faulty title. Constructive possession = Color of Title + actual possession. Therefore, tacking doesn't matter if B had actual possession.

I'm not sure if I'm understanding you correctly, but what it comes down to is that adverse possession always has a statute of limitations. The true owner, by taking the necessary actions, can always step in and take control of the property before that statute of limitations is up. This is where I think our understandings differ - color of title doesn't make someone the true owner, it just characterizes their adverse possession claim. An adverse possessor with color of title still has to go through the statute of limitations, it's just that some states require him to have that color of title to be able to ever successfully claim the land at the end of the SOL, etc. He can't just step in and make himself the TO, even with color of title.

It does have some real effects. Color of title only exists in some states. A majority don't care, and the ones that do apply it in different ways (e.g. a shorter statute of limitations for an AP claim, while others require it outright for AP). New York's one of the states that puts a lot of faith in the principle. But I don't know if there's any state that lets you claim the land outright and instantaneously with it... at the end of the day, good faith or not, your claim to the land's still faulty.

I could be wrong but I think constructive possession is more like a subset of adverse possession. Say A buys a 10 acre parcel from B who gives him a deed that describes the land perfectly. It turns out the B's deed is faulty and C is really the true owner.

A immediately moves on to the land, builds a house, and puts up a fence around 5 acres of the land, but does nothing with the other 5 acres (let's say it's heavily wooded). This goes on for 20 years (assuming AP limit is <20 years. C then shows up and tries to claim the 5 wooded acres saying that A never took possession of those. Because A had color of title describing the 10 acres, and successful AP on the 5 acres fenced in A will have actual title to the whole 10 acres. They don't actually get the title until after the full AP time runs.

The Tacking thing would come in to play if A after say 5 years sold to D, then 15 years later C came for the land. D could use A's 5 years to tack on for the continuous portion.
Did that answer your question?

I think this answer answers my question. Clears up my misunderstanding. Thanks!

[Robb]

Could anyone ELI5 easements vs covenants please? I feel like this is really simple but am struggling with it.

[Mal Reynolds]

Could anyone ELI5 easements vs covenants please? I feel like this is really simple but am struggling with it.

Easements generally concern the rights of people who don't own the land itself. Covenants concern the rights and obligations of the owners of the land? I think they are pretty similar and only different at the margins and with respect to whom they bind. Like I don't really see a difference between reciprocal negative easements and real covenants.

[KD35]

Could anyone ELI5 easements vs covenants please? I feel like this is really simple but am struggling with it.

Easements generally concern the rights of people who don't own the land itself. Covenants concern the rights and obligations of the owners of the land? I think they are pretty similar and only different at the margins and with respect to whom they bind. Like I don't really see a difference between reciprocal negative easements and real covenants.

Going over this now. . . and I think Mal is overall correct.

An easement (generally) is the right to make a specific limited use of the land possessed by someone else. So for example, the right to walk on your neighbor's land to get to the private beach behind his house.

A covenant is instead a restriction of how a person uses their own land. An example a covenant as the restriction of property to be used only as a single-family residence. So a covenant is what would prevent someone from adding a liquor store in the middle of a suburban neighborhood if there is a covenant saying the property can only be used as a single-family home. It is a limitation that runs with the land that prevents alternative/specified uses of the land that you own that runs with the land you currently possess.

And this may be getting a bit beyond the question, but in a a covenant that runs with the land, all of the surrounding properties are likely benefit properties because the covenant affects the value of the land. If every parcel in a suburban neighborhood has a covenant that says that each property can only be used as a single-family residence, each property is a burden and a benefit property. In easements, on a basic level, a property wouldn't be both a burden or benefit property. Although I am sure there are exceptions to that, still new-ish on this.

[2807]

Easement is the use of another's land. ....You understand this... (Jedi wave here)

However,
When you speak of "covenant" think "promise".
Covenant = promise

It can be for anything.... (i.e.: No pool, no 2-story, no fence, whatever...)
You do the analysis for the touch/concern, writing, etc....


Where you are going to get confused... and you will thank me for this later is:
When you cannot enforce a real covenant, you can possibility still enforce an equitable remedy (aka equitable servitude)

So remember this:
You USE THE SAME FACTS/SAME ANALYSIS... you just ask for "equity" as a remedy and NOT damage$.
This is for when the parties are not both the original covenant makers, and there is no writing....etc..

There are elements and issues to address, but what I want to make clear is that you use the same facts and analysis, but you you just do not go for damages. You can still enforce that covenant (aka: PROMISE), but you can only get the offender to change/stop/start/bend/move/ whatever...... just no money. And, they call it an "equitable servitude" instead of an enforcement of a covenant. Thats it. Period.

Of course, afterwards, you could offer to let him pay you to NOT do the equitable act.

[sublime]

..

[2807]

This is regarding enforcement of a Federal right (the enforcement crafted by Congress)

Congress can override a state's sovereign immunity if a law is passed under §5 of 14th Amendment (not Commerce Clause), and the intent to do so (enforce over State) is unmistakably clear.

This is about Congress's ability to enforce a federal right legislation over a state IF the enforcement of the right is part of the goal of the legislation and clearly stated in the legislation approved.

This should feel a bit circular.
It is.
Circular.
So it should feel that way a bit


Also, just looked at your case.
That was SCOTUS telling Congress that they have the right to ENFORCE 14th AMD rights, but NOT to define them or expand them.
That is the job of SCOTUS.


ok, and lastly:

Yes, you would have to establish "State Action" for all of this.

Is that your actual question: "Is a State Action analysis required for 14th amendment, section 5 inquiry? "

The answer is YES, becasue that is entirely what it is about.

[Over the top]

.

[Over the top]

Most embarrassing question ever...how do I know if my contracts prof has been covering Article 2 vs revised Article 2? I know we were supposed to purchase a copy of the 2013 version of the UCC, but not sure if that means we are relying on the revised version...

I would be very surprised if she's covering revised Article 2 since no state has adopted it.

Here's revised Article 2 - http://www.law.cornell.edu/ucc/2/article2 - if the text doesn't match up, you have original article 2.


On second thought, look at the statute of frauds - IIRC revised Article 2 raised it from $500.

[lhanvt13]

question about RAP
Having trouble with this hypo.

E conveys shittyacre to F for life, then to the first child of S who reaches age 25. Assume S is 50 years old and has two children, ages 3 and 1.

So,
1. interests
E - reversion
F - present interest in life estate
S child - contingent remainder

2. Contingent remainder, so good to go.

3. Life in Being
E, F, S and S's children

4. F dies, then it must or must not vest to the children because if they're not 25, then no vesting and if 25 then vest.

Therefore, not subject to RAP

Is this right?

[2807]

question about RAP
Having trouble with this hypo.

E conveys shittyacre to F for life, then to the first child of S who reaches age 25. Assume S is 50 years old and has two children, ages 3 and 1.

So,
1. interests
E - reversion
F - present interest in life estate
S child - contingent remainder

2. Contingent remainder, so good to go.

3. Life in Being
E, F, S and S's children

4. F dies, then it must or must not vest to the children because if they're not 25, then no vesting and if 25 then vest.

Therefore, not subject to RAP

Is this right?

Are you dealing with "The fertile octogenarian" ?
http://en.wikipedia.org/wiki/Illustrati ... rpetuities

Feels like it.