Past Assignments

Past Assignments Spring 2020

1. Tuesday, January 7

a. Read Supplement pages 1-8.

b. Read Dukeminier & Krier pages 761-763; the first 2 paragraphs on page 731 and pages 835-838 (up to but not including Tulk v. Moxhay).

c. Peruse the “CC&R’s” at this link: Bigwood CC&R's. By “peruse” I mean look through them to get an idea of what CC&R’s look like – but pay close attention to the following:

1. The Table of Contents

2. The “Recitals” following the Table of Contents

3. The Use Restrictions in Article VII (beginning at page 22 of the PDF document).

2. For Thursday, January 9:

a. Prepare a summary of last class. The summary should state the major policies and legal rules covered in class.

b. Answer the following question:

1. 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"):

1. Read the introduction to Tulk v. Moxhay at pages 9-10 of the Supplement, then read the case at pages 838-842 and notes 1-4 following the case.

d. Implied Covenants and Servitudes:

1. Read the introduction to Sanborn v. McLean at page 10 of the Supplement, then read the case at pages 854-857 and notes 1-5 following the case. Answer the following questions:

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

b. 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)?

c. 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 Tuesday, January 14:

a. Implied Covenants and Servitudes:

1. Review the introduction to Sanborn v. McLean at page 10 of the Supplement, then read the case at pages 854-857 and notes 1-5 following the case. Answer the following questions:

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

b. 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)?

b. The Requirement of "Touch and Concern":

1. Read Neponsit Property Owner's Assoc., Inc. v. Emigrant Industrial Bank at pages 843-850 and the notes following the case at pages 850-853. In Neponsit, Prof. Bigelow proposes the following test for when a covenant or servitude “touches & concerns” land (see note 25):

a. “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 Thursday, January 16: -- This is a lengthy assignment, give yourself plenty of time.

a. Answer Question 2 of the Touch & Concern Hypos (you don’t need to turn this in but should answer it in writing).

b. Read Caullett v. Stanley Stillwell & Sons, Inc. the Supplement at pages 11-15. Why was the court unwilling to enforce the covenant against successors, even though the parties clearly intended to bind successors.

c. Whitinsville Plaza, Inc. v. Kotseas at Supplement pages 16-22.

d. 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. This is a graded assignment.

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

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

3. 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.

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

5. For Tuesday, January 21:

a. Review the Model Answer to the Covenants & Servitudes Hypothetical. Copies were handed out in class or can be found here.

b. Review Whitinsville Plaza, Inc. v. Kotseas at Supplement pages 16-22.

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

d. Part B(6). Read Hill v. Community of Damien of Molokai in the Supplement at pages 23-31. Note 6 on page 864 of Dukeminier.

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

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

b. No home may be occupied except by Christians?

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

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

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

e. Termination of Covenants & Servitudes: Read “Methods of Terminating Easements & Covenants” in the Supplement at pages 32-33.

6. For Thursday, January 23:

a. Termination of Covenants & Servitudes

1. Review “Methods of Terminating Easements & Covenants” in the Supplement at pages 32-33.

2. Note 5 on page 865 and Western Land v. Truskolaski at pages 865-870 and the notes following the case. 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:

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

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

3. Read Rick v. West with a critical eye.

a. 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:

b. 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.

c. 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?

d. 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?

e. Read the New York statute with great care and identify the purpose of each statutory provision. New York Statute

b. Waiver & Estoppel: Review Supplement pages 32-33. What is the doctrine of waiver? How is the doctrine of estoppel different from the doctrine of waiver?

1. Hypo #1: Assume there is a beautiful residential neighborhood in wooded & spacious suburban area. There are 1,000 lots all restricted to residential uses in uniform CC&R’s that govern all 100 lots. In 2010 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 2012 Corner Lot B is purchased by a Jewish congregation which builds a synagogue. None of the 999 other owners objects. In 2014 Corner Lot C is purchased by a Buddhist congregation which builds a temple. None of the 999 other owners objects. In 2018 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.

a. Should the court enforce the residential restriction, or should the doctrine of waiver apply.

b. Should the outcome be different if the proposed structure is a Hindu religious group that wants to build a temple on a cul-de-sac at the end of a small dead end street?

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

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

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

3. 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?

7. For Tuesday, January 28:

a. Condominiums and Other Common Interest Communities:

1. Pages 873-876 and Nahrstedt v. Lakeside Village Condominium Association, Inc. at pages 876-886 and the notes following the case at pages 886-890.

b. Wrap Up & Review Easements & Covenants:

1. An essay exam 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 you have mastered the material covered on that exam.

c. Introduction to Public Land Use Control:

1. Review Supplement pages 4-9.

2. Read Supplement pages 34-35 and "The Zoning Process" at Supplement pages 36-43. 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.

a. Read D&K pages 895-899 and 910-915. 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.

3. Read Village of Euclid v. Ambler Realty Co. at pages 899-907 and the notes 1-5 following the case.

a. 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.

b. 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 Thursday, January 30:

1. Review Village of Euclid v. Ambler Realty Co. at pages 899-907 and the notes 1-5 following the case.

2. 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:

a. “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.”

3. 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:

a. “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.”

b. “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 – When does regulation go so far as to constitute a taking?:

1. Read pages 997-998.

2. Skim notes 1 and 2 at pages 999-1001.

3. Notes 1 and 2 on pages 1013-1014

4. It is not required for class but you might find it interesting to read Kelo v. City of New London at pages 1001-1013.

5. “Implicit Takings” on pages 1021-1022.

c. Physical invasion. Loretto v.Teleprompter Manhattan CATV Corp. at pages 1022-1033 and notes 1-4 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 5^th 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.

9. For Tuesday, February 4:

a. Physical invasion. Loretto v.Teleprompter Manhattan CATV Corp. at pages 1022-1033 and notes 1-4 following the case.

b. Problems of diminution in value and the "Takings" clause – When does regulation go so far as to constitute a taking?:

1. Control of nuisance.

a. Hadachek v. Sebastian at pages 1035-1044 and notes 1-4 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 5^th Amendment of the U.S. Constitution. 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) Due Process Analysis: Does the Court apply a “presumptions of legislative validity”?

(3) Takings Analysis: The regulation prohibits brickmaking and causes an alleged 90% reduction in the value of Hadachek’s land. Why didn’t the court find a regulatory taking.

c. Pennsylvania Coal Co. v. Mahon at pages 1042-1048 and notes 1-4 following the case. Make sure you pay close attention to the dissent of Justice Brandeis.

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

10. For Thursday, February 6:

a. Review Pennsylvania Coal Co. v. Mahon at pages 1042-1048 and notes 1-4 following the case. Make sure you pay close attention to the dissent of Justice Brandeis.

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

b. HFH, Ltd. v. Superior Court of L.A. at Supplement pages 44-51 & pay special attention to Footnote 11.

1. Make sure you review the questions and comments on page 52 (answer question 1 in writing.) Focus on these questions while reading HFH:

a. Write a short comparison distinguishing a “vested use” from a “vested classification” ← Bring this to class in writing

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

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

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

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

f. 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?

c. Regulatory Taking:

1. Penn Central Transportation Co. v. City of New York at pages 1050-1062 and notes 1-2 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?

11. For Tuesday, February 11:

a. Remedies for "Inverse Condemnation":

1. Read the notes at Supplement page 52.

2. Read notes 1-3 at pages 1065-1068 and First English Evangelical Lutheran Church of Glendale v. County of L.A. at Supplement pages 53-64.

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

4. 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:

a. $1,000,000.

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

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

d. All of the above.

e. 1 and 2?

f. 2 and 3?

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

1. Read Lucas v. South Carolina Coastal Council at pages 1068-1084 and notes 1-4 following the case. In Lucas, does the U.S. Supreme Court announce a new "per se" test for when regulation constitutes a taking?

2. Read Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency.

a. I have highlighted important statements in 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, and Keystone Bituminous Coal.

b. This wraps up our discussion of the 5^th Amendment Takings Clause.

3. Listen to the National Public Radio broadcasts at the following links:

a. Radio Excerpts from NPR on the Lake Tahoe case:

(1) NPR Excerpt – January 8, 2002

(2) NPR Excerpt – April 23, 2002

(3) NPR Excerpt – April 24, 2002

12. For Thursday, February 13:

a. Comprehensive Plans:

1. Read pages 911-913 and review Supplement pages 36-43. Read the Model Land Development Code excerpts at Supplement pages 64-65.

b. Flexibility & Non-Conforming Uses:

1. An important part of this assignment is to read the San Diego Municipal Code provisions in the Supplement, at pages 66-67, 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.

2. PA Northwestern Distributors, Inc. v. Zoning Hearing Board at pages 915-919 and notes 1-4 following the case.

c. Variances:

1. Read Achieving Flexibility in Zoning and Commons v. Westwood Zoning Board of Adjustment at pages 924-928.

2. Read the excerpts from the San Diego Municipal Code dealing with variances at Supplement pages 67-68. Carefully identify the purpose of each and every paragraph.

3. Make sure you are prepared to distinguish between:

a. Non-conforming uses.

b. Variances

c. Special Use Exceptions

**Tuesday, February 18 – No Class Presidents Day**

13. For Thursday, February 20:

a. Comprehensive Plans:

1. Review pages 911-913 and review Supplement pages 36-43. Read the Model Land Development Code excerpts at Supplement pages 64-65.

b. Variances:

1. Review Achieving Flexibility in Zoning and Commons v. Westwood Zoning Board of Adjustment at pages 924-928.

2. Read the excerpts from the San Diego Municipal Code dealing with variances at Supplement pages 67-68. Carefully identify the purpose of each and every paragraph.

3. Make sure you are prepared to distinguish between:

a. Non-conforming uses.

b. Variances

c. Special Use Exceptions

c. Conditional Use Permits (also known as “Special Use Exceptions”):

1. Read Cope v. Inhabitants of the Town of Brunswick at pages 928-930 and the notes following the case.

2. Read the excerpts from the San Diego Municipal Code dealing with conditional use permits at Supplement pages 69-72. Carefully identify the purpose of each and every paragraph.

d. Due Process Revisited:

1. Read State v. City of Rochester at pages 931-932 and notes 1-4 following the case.

a. 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.

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

14. Tuesday, February 25:

a. Review

1. Due Process Revisited: Read State v. City of Rochester at pages 931-932 and notes 1-4 following the case.

b. Introduction to Landlord & Tenant Law:

1. Read the landlord and tenant materials at Supplement pages 73-76. Bring copies with you to class.

2. Pages 461-463 and 468-471.

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

a. Estate for years

b. Periodic estate

c. Tenancy at will

d. Tenancy at sufferance

c. Answer Questions for Class

1. Lisa verbally states to Tina: I, Lisa, hereby lease you my house at 3415 Main Street for five years at $500 per month, starting one week from today. One month later, Lisa seeks to evict Tina, asserting that the lease is nenforceable under the California Statute of Frauds (see page 82). Tina is not in default and has made all her lease payments. Does that mean the tenant, Tina, has no estate at all? What possible argument can Tina make to assert that she has a leasehold estate? What type of leasehold estate?

2. Teddy is a tenant and has a year to year lease for the calendar year (January 1st to December 31st) at $2,000 per month. On July 2, 2018, Teddy sent written notice to his landlord, Linda, that the lease will not be renewed for Jan-Dec 2018. Teddy moved out on December 31, 2018. On January 1, 2019, Linda sent a letter to Teddy stating that that the periodic lease has automatically renewed and Teddy is responsible for a year’s rent for all of 2019.

a. Q: Is Linda correct if the common law rule applies?

b. Q: Is Linda correct under California law? See page 82 of the Supplement.

3. Suppose that 16 years ago Landlord leased property to Tenant for 50 years at the rent of $1,000 per year. Landlord died last month & his ownership interest (reversion in fee simple) passed to his daughter, Lila. There are 34 years remaining on the term of the lease. The rental value of the premises is now $10,000 per year. Lila wants to terminate the lease and re-lease the premises for $10,000 per year (an additional $306,000 in rent over the next 34 years). What are the rights of Lila? Of Tenant?

15. Thursday, February 27:

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

a. Estate for years

b. Periodic estate

c. Tenancy at will

d. Tenancy at sufferance

b. Answer Questions for Class

a. Q: Is Linda correct if the common law rule applies?

b. Q: Is Linda correct under California law? See page 82 of the Supplement.

c. Creation of Leasehold Estates

1. Garner v. Gerrish at pages 463-465 and notes 1-3 following the case. In Garner what leasehold estate was created?

d. Holdover Tenants:

1. Pages 467-468.

2. Read Crechale & Polles, Inc. v. John and Gloria Smith at Supplement pages 77-81.

a. In Crechale the original five-year estate for years terminated on February 6^th: What estate was created after termination of the five-year estate for years? When was the estate created and how long did it last?

3. Carefully read the excerpts from the California Civil Code at page 82.

4. This would be a good time to wrap up private and public land use control. See the Links & References section below for:

5. Sample Zoning Essay Question & Model Answer

6. Spring 2015 Property Essay Question & Model Answer

7. Covenant and Servitudes Questions & Model Answer

e. Q&A: You can also review questions and answers in the Questions & Answers section below.

16. Tuesday, March 3:

a. Holdover Tenants:

1. Pages 467-468.

2. Review Crechale & Polles, Inc. v. John and Gloria Smith at Supplement pages 77-81.

3. Carefully read the excerpts from the California Civil Code at page 82.

4. Below is a timeline of the events in the case of Crechale v. Smith. Review the timeline and answer the questions:

• 2/5/64: 5 year lease executed. Term starts 2/7/64. Rent $1,250 per month. Expires 12:01 am 2/6/69

• Dec. ‘68/Jan ‘69: Smith seeks extension of original lease term. Factual dispute as to whether granted.

• 2/4/69: Smith sends letter “confirming” extension.

• 2/6/69: Following expiration of lease term, L states in writing: T must vacate or “double the rent” if T stays.

• 3/3: T pays rent for month of February & L accepts

• 4/6: T offers rent for March (“final payment”). L rejects.

• 4/17: T tenders the premises to the landlord.

• 4/19 (over 2 months since lease expired): L notifies that he is treating the holdover as a renewal of five year lease (at original rent)

• 1970: L sues for back rent for 11 months @ $1,250 = $13,750.

Questions: In Crechale the original five-year estate for years terminated on February 6^th:

1. What leasehold estate, if any, exists on the following dates: 2/6/69, 3/3/69, 4/6/69, 4/17/69, 4/19/69?

2. What options did the landlord have when the tenant remained in possession on February 6^th?

b. The Tenant's Obligations & The Landlord's Remedies:

1. Care of the leased premises and duty to repair. Page 522.

c. Unlawful Detainer Summary Proceedings:

1. Notes at pages 508-510

2. Supplement pages 83-84 and Lindsey v. Normet at Supplement pages 85-94.

3. The California Unlawful Detainer Proceeding

a. Review California Code of Civil Procedure §1161 & Related Provisions

b. Review State of California Official Judicial Council Unlawful Detainer Complaint.

c. Review State of California Official Judicial Council Unlawful Detainer Answer.

d. Review State of California Official Judicial Council Unlawful Detainer Summons

17. Thursday, March 5:

a. Unlawful Detainer Summary Proceedings:

1. Notes at pages 508-510

2. Supplement pages 83-84 and Lindsey v. Normet at Supplement pages 85-94.

3. The California Unlawful Detainer Proceeding

a. Review California Code of Civil Procedure §1161 & Related Provisions

b. Review State of California Official Judicial Council Unlawful Detainer Complaint.

c. Review State of California Official Judicial Council Unlawful Detainer Answer.

d. Review State of California Official Judicial Council Unlawful Detainer Summons

b. Question & Challenge:

1. There will be prize for answering the challenge correctly.

2. Review California Code of Civil Procedure 1161.

3. Assume that a residential tenant in California, Tim, defaults in the payment of rent on April 1^st. The landlord, Lisa, wants to evict Tim from the apartment. What’s the shortest possible time until Lisa can legally regain possession of the premises using Unlawful Detainer proceedings under CCCP 1161 if:

a. Tim does not answer the complaint.

b. Tim does answer the complaint and seeks a trial. There will not be a summary judgment motion.

4. To be eligible to win the challenge, email me with the correct conclusion with an explanation of the time periods involved. The email must be received by the day before class at 4:00 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:

c. The Tenant's Obligations & The Landlord's Remedies:

1. Care of the leased premises and duty to repair. Pages 522-523.

2. Abandonment, surrender and liability for damages: Read Supplement pages 95-97; Sommer v. Kridel at pages 510-516 and notes 1-5 following the case.

a. 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?

3. Carefully read §1951.2 and 1951.4 of the California Civil Code (in the Supplement at pages 98-99). How do these provisions affect the common law “no mitigation” rule in the State of California?

a. 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).

d. Quiet enjoyment and constructive eviction.

1. The common law background: re-read Supplement pages 73-74 and Supplement pages 99-101.

2. Read page 522 and Village Commons, LLC v. Marion County Prosecutor’s Office at pages 523-528 and notes 1-4 following the case. When reading Village Commons keep in mind the following questions:

a. The tenant asserted that her obligation to pay rent under the lease terminated because of a “constructive eviction.” What is “constructive eviction?”

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

18. Tuesday, March 10:

a. Quiet enjoyment and constructive eviction.

1. The common law background: re-read Supplement pages 73-74 and Supplement pages 99-101.

a. The tenant asserted that her obligation to pay rent under the lease terminated because of a “constructive eviction.” What is “constructive eviction?”

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

19. Thursday, March 12:

a. Implying Covenants:

1. The Covenant to Deliver Possession on the First Day of the Term: Read Hannan v. Dusch at pages 478(bottom)–481 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?

b. Answer the following question:

1. On August 1^st, Tenant leased a residential apartment, for a 1 year term commencing September 1^st at a rent of $3,000/mo. On September 1^st, Tenant arrives at the apartment 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 $5,000 to evict the prior tenant using unlawful detainer proceedings. If she puts up a good defense, it will take $7,000 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.

a. Can you identify at least three ways to factually distinguish the Hannan case?

c. Illegal Leases

1. Read the notes about Brown v. Southall Realty Co. at page 532.

d. The Warranty of Habitability

1. Read Hilder v. St. Peter at pages 533-539 and notes 1-3 following the case. Do problem 4(c) at page 527. When reading Hilder and the notes following the case, concentrate on these questions.

2. Carefully read California Code of Civil Procedure §1174.2 at pages 100-101 of the Supplement.

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

e. Implying Covenants:

1. The Covenant to Deliver Possession on the First Day of the Term: Read

2. Answer the following question:

a. On August 1^st, Tenant leased a residential apartment, for a 1 year term commencing September 1^st at a rent of $3,000/mo. On September 1^st, Tenant arrives at the apartment 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 $5,000 to evict the prior tenant using unlawful detainer proceedings. If she puts up a good defense, it will take $7,000 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.

(1) Can you identify at least three ways to factually distinguish the Hannan case?

f. Illegal Leases

1. Read the notes about Brown v. Southall Realty Co. at page 532.

g. The Warranty of Habitability

1. Read Hilder v. St. Peter at pages 533-539 and notes 1-3 following the case. Do problem 4(c) at page 527. When reading Hilder and the notes following the case, concentrate on these questions.

2. Carefully read California Code of Civil Procedure §1174.2 at pages 100-101 of the Supplement.

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

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

1. Retaliatory eviction. Read the notes on retaliatory eviction at page 542-543..

2. 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.

3. 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. Tuesday, March 17:

a. A video of Tuesday’s class is available. Click here to view the video.

b. You can access & print out the slideshow for class on the Property Website.

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

1. Retaliatory eviction. Read the notes on retaliatory eviction at page 542-543..

2. 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.

d. Assignments & Subleases:

1. Read Supplement pages 102-103.

2. Ernst v. Conditt at pages 483-488 and notes 1-4 following the case. Re-read carefully §1951.4 of the California Code of Civil Procedure excerpts at Supplement page 96.

3. Answer the hypothetical at Supplement page 104.

a. 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

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

21. Thursday, March 19:

a. Assignments & Subleases:

1. Read Supplement pages 102-103.

2. Ernst v. Conditt at pages 483-488 and notes 1-4 following the case. Re-read carefully §1951.4 of the California Code of Civil Procedure excerpts at Supplement page 96.

3. Answer the hypothetical at Supplement page 104.

a. 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

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

b. Security Deposits:

1. Pages 519-521 and Supplement pages 105-109.

2. Question:

a. 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’t need to submit a written response to this question. Just be prepared to answer the question.)

3. There is a written response required as part of this assignment (see page 109 of the Supplement). 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 and Superior Court Website

a. Instructions for submitting your written response:

(1) Not more than one typed page.

(2) Prepare your response in a Word or PDF format and include your Student ID in the document (not in the email) at the top of your answer.

(3) When you save the document, include your last name in the title of the document. For example: “Jones Letter” or “Smith Letter”.

(4) Email the document to: sbe@cwsl.edu

(i) Make sure you include the words “Security Deposit” in the subject matter line of your email.

22. Tuesday, March 24:

a. **OFFICE HOURS TODAY WILL BE 2:00-3:30** The link for Office Hours is: https://cwsl.zoom.us/j/266979203

b. A video of this class is available. Click here to view the video (available until March 31)

c. You can access & print out the slideshow for class on the Property Website.

d. Review the Model Security Deposit Letter

e. Introduction to Real Estate Transactions:

1. Introduction. Supplement page 110; Pages 553-554, 568-570, 575-576, 580-581 and 592-594.

f. The Contract of Sale & Marketable Title:

1. Read the Contract of Sale at pages 554-568.

2. Lohmeyer v. Bower at pages 577-579 and notes 1-4 following the case.

3. 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)

g. Deeds

1. The Necessity of a Deed; Form of Deeds.

a. Pages 595-600.

b. Read the California statutory provisions at Supplement pages 111-112.

23. Thursday, March 26:

a. **OFFICE HOURS TODAY WILL BE 2:00-3:30** The link for Office Hours is: https://cwsl.zoom.us/j/266979203

b. You can access & print out the slideshow for class on the Property Website.

c. Deeds

1. The Necessity of a Deed; Form of Deeds.

a. Pages 595-600.

b. Read the California statutory provisions at Supplement pages 111-112.

2. Deed Delivery: It will be helpful if you use some secondary resource to master the rules of deed delivery.

a. Read note 2 (“Delivery”) on pages 611-612.

b. Read the pre-case text and the case of Rosengrant v. Rosengrant at pages 612-616 and note 1 following the case.

d. Respond to the following “Delivery of the Deed” hypotheticals:

1. Delivery of the Deed Hypos in PDF Format, Delivery of the Deed Hypos in Word Format.

e. 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 4:00 pm the day before class.

24. Tuesday, March 31:

A video of this class is available. Click here to view the video (available until April 7)

**OFFICE HOURS TODAY WILL BE 2:00-3:30** The link for Office Hours is: https://cwsl.zoom.us/j/266979203

You can access & print out the slideshow for class on the Property Website.

a. Deed Delivery:

1. Review the Answers to the Delivery of the Deed Hypos

b. Warranties of Title in Deeds

1. The warranties: Review pages 595-600.

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

1. Rockafellor v. Gray at pages 605-609 and notes 1-4 following the case.

2. Respond to the Following Hypothetical: In 2002, Ann conveyed Blackacre to Bob, using a Full Warranty Deed. In 2006, Bob conveyed to Carl, using a Quitclaim Deed. In 2016 Carl conveyed the property to Donna, using a Full Warranty Deed. In 2018 it was discovered that Xavier is the true owner of the Blackacre and acquired his title in 1999. Ann’s title was defective and ineffective to transfer title to Bob. The land is vacant but very valuable. In 2019, Xavier brought an action and evicted 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?

d. Recording Acts:

1. Pages 661-667 and 674-677

2. Note 3 on page 682

3. Pages 682-685

4. Problems and notes on pages 685-686.

25. Thursday April 2:

**OFFICE HOURS TODAY WILL BE 2:00-3:30** The link for Office Hours is: https://cwsl.zoom.us/j/266979203

You can access & print out the slideshow for class on the Property Website.

Video of today’s class is available. Technical issues caused this class to be recorded in two sessions:

Part 1

Part 2

a. Recording Acts:

1. Pages 661-667 and 674-677

2. Note 3 on page 682

3. Pages 682-685

4. Problems and notes on pages 685-686.

b. Test Your Understanding of Recording Acts:

1. Respond to the following hypotheticals: Recording Act Hypos

2. Check your answers to the Recording Act Hypos: Recording Act Answers

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

a. 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. . .

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

c. Constructive Notice by Possession.

1. Read “Inquiry Notice” on page 702 and notes 2-3 on page 706.

2. What result in a state with a notice or race-notice statute in the following hypothetical:

a. In 2016 Ann purchased a condominium unit (Unit #77) from Developer but did not record her deed. She immediately moved into the apartment. It was a large building with 100 units. Ann was the first purchaser. After selling Unit #77 to Ann, Developer sold the remaining units to Buyer. The deed described all of units in the building, including Unit #77. Buyer immediately recorded the deed. Buyer was unaware of the prior sale to Ann of Unit #77. Buyer’s lawyers checked the county recorder’s office and, of course, did not discover the deed to Ann because it was not recorded. Buyer has brought an action seeking to establish that Buyer has superior title under the applicable recording act. Will Buyer succeed?

d. Chain of Title

1. You can download &/or printout a handout I will refer to it in class: Chain of Title Handout

2. Note 4 on page 692.

3. Note 4 on pages 695-696.

4. Note 5 on pages 696-697.

5. Note 5 on pages 697-698.

6. “Wild Deeds”: Respond to the following hypo:

a. The jurisdiction has the following race-notice recording statute

(1) No deed is valid against a subsequent purchaser, for value, without notice, who records.

b. Ann conveyed Blackacre to Bob in 2010 but Bob did not record the deed. In 2011 Bob conveyed the property to Cathy and Cathy recorded her deed. In 2012 Bob recorded his deed. Bob sold Blackacre to Xavier in 2018 & Xavier immediately recorded the deed. Xavier did not have actual notice of the conveyance to Cathy and the property is vacant.

c. In a quiet title action between Xavier and Cathy who will win? [The answer will depend on whether or not a reasonable title search by Xavier would reveal Cathy’s deed.]

e. Marketable Title Acts

1. Note on page 707.

f. Title Insurance:

1. Supplement pages 113-114.

2. Read “Title Assurance” in D&K page 661.

3. Pages 719-720.

4. Walker Rogge, Inc. v. Chelsea Title & Guaranty Co. at pages 720-725 and notes 1-7 following the case.

26. Tuesday, April 7:

A video of this class is available. Click here to view the video (available until April 10)

OFFICE HOURS TODAY WILL BE 2:00-3:30. The link for Office Hours is: https://cwsl.zoom.us/j/266979203

You can access & print out the slideshow for class on the Property Website.Legal Descriptions

a. Security Interests in Land:

1. Introduction to Mortgages.

2. Read pages 552-554.

3. Read pages 617-623

b. Installment Sales Contracts:

1. Read the text at the pages 656-657.

c. We will review Set #1 Multiple Choice Questions together. Additional multiple choice questions can be found here (these are just for practice – they cover mostly first semester material): Set #2 Multiple Choice Questions. See Links & Reference Materials below for the Answers.