MODEL RULE/ANSWERS

[Acquisition by Creation]
In terms of IP law, there are three key areas where issues could arise in the exam.
1. Copyrights
2. Patent
3. Publicity Rights

In regards to Copyright law,

The general rule is that publicly available facts cannot be owned. However, there are some
exceptions to the general rule.
If the publicly available fact is obtained by effort and cost AND can be commercially used, the court
may view the publicly available fact to be quasi property meaning that it can be somewhat
copyrighted.
In the INS case, AP obtained the facts through great effort and expense. It would be unfair for INS to
obtain the information for free to use and sell it for themselves.

Also, if there is a compilation of facts, and it contains some originality, where a minimum amount of
creativity was used in either arranging it, it may be copyrightable (Feist Publication Case).

Let's say that something is copyrighted.

Generally, copyrighted property cannot be used without a license from the owner. However,
there is an exception to this general rule (Harper).
If the copyrighted product falls under the Fair Use Doctrine, it is not copyright infringement to use it.
There are four factors considered for Fair Use Doctrine
1. Purpose of the Use: If for non profit, fair use.
2. Nature of copyrighted work: If for republication, fair use.
3. Amount and substantiality: If copied not a lot for insignificant portions, fair use.
4. Effect on the market: If it does not cause any legal disputes, and no effect on the
market, it is considered fair use.

In regards to Patent Law,

Generally, for something to be patentable, it has to be related to one of four things.
1. Process: Process of manufacturing
2. Machine: Machine used to manufacture
3. Manufacture: The resulting manufactured product
4. Composition of Matter: Composition of product
Adding to the general rule, living organisms generally cannot be patented. However, if it is created
and manufactured inorganically, it is patentable.

In regards to Publicity Rights,

Generally, unauthorized commercial use of an individual’s name, likeness, or persona is prohibited.
Specifically, you may not use the celebrity’s name, likeness, voice, or signature for profit without
consent.
[Rights of Owners]
True owners or properties generally have absolute rights to their property. However, there are
exceptions to this broad rule.

Generally, owners of properties can exclude anyone from their property. However, an owner may not
exclude if the trespass was due to necessity OR an exercise of constitutional rights.

Generally, owners of properties can also abandon real property if there was 1) voluntary
relinquishment AND 2) the title was vested onto another person.

Generally, owners of personal properties can also abandon through voluntary relinquishment.
However, the intent of the owner to abandon property may be rebutted if it was not claimed by
another party who has an intent to own that property.

Generally, owners have the right to destroy their own property. However, they may be stopped by the
court if the public policy conflicts with the owner’s intention to raze.

[Acquisition by Find]
Generally, the finder has a superior right to everyone but the true owner or prior possessor (Armory).

In the case of finder vs. land owner, there are factors that need to be considered.
First, the intention of the true owner must be determined by: Lost vs. Mislaid
Location: If found on the ground, more likely to be lost where likelihood of being found
decreases. Therefore, go to the finder. If found on the counter, more likely to be mislaid
where the likelihood of the item being found by the true owner increases. Therefore, go to the
property owner.
Time: When it was found is also relevant.
Value: The more valuable an item is, the more likely the true owner would come and find it.
Once analysis is done to find if it was lost or mislaid, now must determine whether the finder or locus
owner will take possession.
IF the item is attached to the property, always goes to the locus owner.
IF the item is lost and found on public property, goes to the finder
IF the item is mislaid, always goes to the locus owner.
Always need to consider likelihood to be found.
Lastly, good faith of the finder is also important (whether finder contacted authority)
[Adverse Possession]
To obtain adverse possession means acquiring title of the said land.
Generally, in order to obtain adverse possession of real property, four elements must be met.
1. Actual Entry
2. Open and Notorious
3. Continuous for the Statutory Period
4. Hostility
Regarding the first element of “Actual Entry”,
Actual and exclusive entry onto the land is required. There are two approaches.
Van Majority: Complete enclosure or substantial improvement on the land is required
Van Minority: Boundary markers and substantial improvement is sufficient

Regarding the second element of “Open and Notorious”

The rule states that the encroachment must be visible to the naked eye.

Regarding the third element of Continuous for a Statutory Period,

The rule states that the statutory period has to be of a continuous nature.
Specifically, when determining the continuous nature,
the court will refer to the nature of the property. For example, if the property is a
summer home, continuous would mean for a period of summer or spring only.
Additionally, only those in the privity of estate can tack. However, in the case where there is
even no privity, the court may allow tacking if there was a voluntary transfer of property
interest.

Lastly, in the hostility requirement, there are two approaches.

Minority Main Doctrine: Requires adverse possessor to have specific hostile (trespassory)
intent to possess land.
Majority Connecticut Approach: Does not require the specific intent. The adverse possessor
just needs to believe that the land was his, thus mistakes are okay.

[Acquisition by Gift]
Generally, gift inter vivos (given during life) are irrevocable.
Furthermore, there are three elements to establish a gift.
1. Intention
2. Delivery
3. Acceptance
Regarding intention, there has to be a present intention made to transfer absolute ownership. Words
and circumstances are referred to in order to determine the true intention of the gifter.

Regarding delivery, there are three different methods for delivery of gifts.
1. Manual Delivery
2. Constructive Delivery
3. Symbolic Delivery
Generally, if manual delivery is possible, it is required. However, courts may allow other forms of
delivery to suffice by considering the specific intention of the gifter and the impracticality of the gift.
Adding on, future ownership interest can be given as a gift if there was present intention to gift it. In
this case, symbolic delivery is sufficient for future ownership interests gifts.
ex) I want to give you a letter that says, “You can have my car when I retire”.

[Possessory Present Estate]

There are largely three different types of estate learned.
1. Fee Simple Absolute
2. Fee Simple Defeasible
3. Life Estate
Fee Simple Absolute is usually regarded as a complete transfer of title of land.
1. Inheritable. However, if no one inherits, it is escheeted (back to government)
2. Created by using the words, “To A and his heirs”. However, these days, “A conveys
to B” is enough to create a FSA.

Fee Simple Defeasible may hold or convey the property, but the receiver must use the property
subject to a restriction. There are three types:
1. Fee Simple Determinable (FSD)
2. Fee Simple Subject to Condition Subsequent (FSSCS)
Fee Simple Determinable is a FS which automatically comes to an end when a stated event occurs
(restriction triggered).
ex) : O owns Blackacre in fee simple. He sells the property "to A and his heirs so long as the
premises are not used for the sale of alcoholic beverages." A then purports to convey a fee
simple absolute to B, who builds a bar. When the first alcoholic beverage is sold, B’s interest
automatically ends, and the property reverts to O (or his heirs)
Future Interest: Possibility of Reverter: Creator of a FSD is always left with a “possibility of reverter”
ex) In the above example, O, following the conveyance, is left with a possibility of reverting
if alcohol is sold (trigger).
=> As seen from the example, FSD is usually created by time words: “so long as”, or “until”,
or “during”.

Fee Simple Subject to a Condition Subsequent does not end automatically, instead grantor has right
of reentry. Nothing happens until lawsuit commences.
ex) : O conveys Blackacre to A and his heirs "but upon condition that no alcohol is ever
served; if alcohol is served, Grantor or his heirs may re-enter the property and terminate the
estate." A has a fee simple subject to condition subsequent.
=> If holder of right of reentry does not promptly re-enter or sue, he will lose right
Future Interest: Possibility of Reentry:
Example Case
“Said property is restricted for the use and benefit of the second party, only; and in the event the same
fails to be used by the second party or in the event of sale or transfer by the second party of all or any
part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns.”
=> The Court struck out second conveyance of restriction on alienation
SR: If disjunctive, can be severed.

Generally, restraint on alienation of a fee simple is generally void.

ex) O conveys Blackacre "to A and his heirs, but no conveyance by A to any third party shall
be valid." Since this restricts the alienation of a fee simple, the restriction will be void, and A
may convey to whomever he wishes.
Use restriction will generally be upheld
ex) : O conveys "to A and his heirs, provided that the property not be used for non-residential
purposes."

[Landlord and Tenant]

Different Types of Leaseholds:

(1) Term of Years=> Estate lasting for some fixed period of time. Beginning and end.
(a) No limit on number of years permitted + no notice of termination needed.
(2) Periodic Tenancy=> Lease for a fixed period of duration that continues for succeeding period
until landlord OR tenant gives notice of termination.
(a) If no notice, automatic renewal.
(b) (CL) Year-to-year: Half a year’s notice required
(c) (CL) 6-months: One month
(d) Less than a year=> notice of termination must be given equal to length of the period.
(e) (CL) Month-to-month=> One month
(3) Tenancy at Will=> Period is infinite and continues until one party gives notice of termination.
(a) Notice is an requirement

BASIC FORMAT
Duties of Landlord
Issue #1: Actual Possession vs. Legal Possession
Issue #2: Covenant of Quiet Enjoyment?
Issue #3: If tenant breaches (leave lease), duty to mitigate?
Duties of Tenant=> Pay Rent
Issue #1: Assignment Lease & Sublease
Issue #2: Privity to have a duty to pay rent?
Landlord-tenant (lease relationship)
Tenant- tenant (sub-lease)
Duties of Landlord
Issue #1: Actual Possession vs. Legal Possession
American View: Landlords have a duty to deliver only legal possession, not actual possession.
- Just giving property. Giving contract lease.
English Rule: Landlords have a duty to deliver actual possession.
- ex) Landlord must kick out previous tenant

Issue #2: Covenant of Quiet Enjoyment?

GR: Tenant has the right of quiet enjoyment of the lease premises.
(1) If the landlord himself, or someone claiming under L, interferes with T’s use of premises, this
is a breach of covenant of quiet enjoyment.
(a) Conduct of other tenants makes premises uninhabitable
(i) Traditional view: L not responsible
(ii) Modern view: L responsible
1) If L does not evict when he could, T can terminate lease.
(b) Actual Eviction: Physical deprivation of an occupancy of a material part of the lease
(i) Tenant does not need to pay rent until the landlord fixes the material
problem.
(c) Constructive Eviction: When action or omission of the landlord materially deprives
lessee of beneficial use or enjoyment (covenant of quiet enjoyment) of the lease
property
(i) Tenants may not reduce rent payment. Must vacate lease within reasonable
time, or else pay full lease amount.
Issue #2-1: Landlord’s implied warranty of habitability
GR: Standards must be safe, clean, and fit for human habitation

Issue #3: If a tenant breaches (leaves), duty to mitigate by landlord?

GR: Landlord must mitigate his damages by trying to find another tenant.
1) Landlord must make reasonable efforts
2) If different or inferior, does not have to take the deal
a) Determined by 계약 조건, rent payment (price).

Duties of Tenant
Issue #1: Duty to pay rent
(1) T has duty to pay rent
(a) However, if L materially breaches implied or express duties, T may be temporarily
relieved from continuing to pay rent.

Issue #2: Assignment lease v. Sublease

Generally, unless parties agree otherwise, either may transfer interest. T may either assign or
sublease his right to occupy.
Assignment Lease
(1) Transfer by T of his entire interest in leased premise. Must transfer the entire remaining
length of term of lease.
Sublease
(1) Transfer by T of less than his entire interest
 (a) ex) : T’s lease has one year to go. T transfers the first 11.5 months of this interest to
T1
SIGNIFICANCE:
(1) T assigned to T1=> T1 is personally liable to pay rent to L, even if there is no express
promise to L or T he will do so.
(2) T sublease to T1=> T1 is not personally liable to L for the rent (absent explicit promise).

[NUISANCE]
GR: Nuisance if there is a 1) Non trespassory invasion, of 2) another’s interest in the 3) private use
and enjoyment of land by any type of liability forming conduct
SR: Standard of liability forming conduct: Two Jurisdictions
Majority: Threshold Test=> Frequency + Intensity
Minority: Balancing Test=> Gravity of harm to P outweighs utility to D
Remedy:
1) Traditional jurisdiction: Substantial harm done= Injunction
2) Stern Necessity: Harm to P vs. Necessity of D and society
3) Permanent Damage Jurisdiction: Utility to society vs. Harm to P
a) May issue permanent damage instead of injunction

Special Cases:
1) If P comes to the nuisance knowingly, D may indemnify P for cost of injunction

[Easements]

[E