Steward Sterk Property Attack Outline Write a brief

MARITAL INTERESTS

1. 
   Common Law – Property is owned by the spouse who paid for or inherited it
   
2. 
   Community Property – Whatever one spouse earns is deemed owned by both
   
3. 
   Marital Property
   
   1. 
      All property acquired by either spouse subsequent to the marriage
      
   2. 
      Exceptions
      
      1. 
         Property acquired by gift, bequest, devise or descent
         
      2. 
         Property acquired in exchange for property acquired prior to marriage or gift, etc.
         
      3. 
         Property acquired after decree of legal separation
         
      4. 
         Property excluded by valid agreement of parties
         
   3. 
      Degrees and Professions (Compare Graham/Mahoney with O’Brien/Elkus)
      
      1. 
         In re Marriage of Graham – Couple w/ no marital property, W supported H to get a degree during marriage
         
         1. 
            Distinguishes professional practice which could be bought/sold
            
         2. 
            Value a degree – Average income of degree holder minus income of non-degree holder back-solved to present value
            
         3. 
            Holding: Degree is not marital property in CO, W could have sought alimony and had a restitution claim for degree factored there, but not marital property
            
      2. 
         Mahoney v. Mahoney (NJ) – Professional degree too speculative to value  reimbursement alimony
         
      3. 
         O’Brien v. O’Brien (NY) – H’s medical license was marital property
         
      4. 
         Elkus v. Elkus – W’s singing career/professional reputation is marital property
         
         1. 
            H took care of kids, was voice coach
            
      5. 
         Dugan v. Dugan (NJ) – Goodwill as reputation that can generate future business is marital property
         
      6. 
         Hypo: H and W are married, H has premarital law degree. H runs for office, is elected, then loses. On divorce, W wants piece of reputation for congressional career.
         
         1. 
            W argues she helped campaign, etc.
            
         2. 
            H argues that legal career would have been more lucrative even factoring gains to reputation  if there is no increased earning capacity there is nothing to divide on divorce
            

9. LEASEHOLDS

   1. 
      Types
      
      1. 
         Periodic – Automatically renewing after term of time
         
         1. 
            Requires T to give notice of termination, usually length of tenancy (1y6mo)
            
      2. 
         Term of Years – Fixed period of time
         
         1. 
            Must be able to ID start and end date
            
         2. 
            Can be inherited
            
      3. 
         Tenancy at Will – Period of time terminable by L or T
         
         1. 
            Not transferrable or assignable
            
      4. 
         Garner v. Garish (NY) – Holding tenancy at will terminable by T only is acceptable
         
         1. 
            Must be unambiguous by the express terms of the lease
            
      5. 
         Hypo: L leases to T “for the duration of the war”
         
         1. 
            Either tenancy at will or life estate subject to condition subsequent
            
      6. 
         Form Leases – Allowed, lower transaction costs, more flexible than leases mandated by statute
         
   2. 
      Holdover – T does not vacate after lease terminates
      
      1. 
         Common Law
         
         1. 
            L can evict – Ejectment/damages
            
         2. 
            L can consent – Express/implied creates new tenancy, usually periodic
            
         3. 
            Note analogy to bona fide purchaser for value
            
      2. 
         Self-Help – Generally not allowed
         

3. 
   Fair Housing Act (p.431)
   
   1. 
      §3603 (Exemptions)
      
      1. 
         (b)(1) – Nothing applied to any single-family house sold or rented by the owner provided the owner doesn’t own more than three such houses, only if rented (A) without the services of a real estate broker, and (B) without publication/advertisement in violation of §3604(c)
         
      2. 
         (b)(2) – Rooms or units in dwellings containing living quarters to be occupied by no more than 4 families living independently of each other, if owner actually maintains and occupies one of such quarters as his residence
         
   2. 
      §3604 (Discrimination)
      
      1. 
         (a) Unlawful to refuse to sell/rent… to any person because of race, color, religion, sex, familial status, or national origin
         
      2. 
         (b) Unlawful to discriminate in the terms, conditions or privileges of sale/rental
         
      3. 
         (c) To make, print, or publish any notice/advertisement WRT sale or rental of a dwelling indicating preference (reasonable person standard)
         
      4. 
         (f)(1) – Unlawful to discriminate in sale/rental based on handicap
         
      5. 
         (f)(2) – Unlawful to discriminate in terms/conditions/privileges based on handicap
         
      6. 
         (f)(3) – Discrimination includes (A) refusal to permit reasonable modification of existing premises (rental – L may require T to restore after lease); (B) a refusal to make reasonable accommodations in rules, policies, practices, or services; or (C) in connection with housing built after Sept. 13, 1988 (occupancy 30mo after), failure to design and construct those dwellings in such a manner that common and public areas are readily accessible to handicapped persons
         
   3. 
      NOTE: Renter from an exempt L must sue under § 1983 (race/ethnicity only)
      
   4. 
      Soules v. Downs – Remember McDonnell Douglas burden shifting
      
      1. 
         Holding: No discrimination when Δ showed evidence that she had attempted to rent to other people in same protected class and didn’t rent to Π cause she’s a bitch
         
      2. 
         Consider
         
         1. 
            Π must qualify to rent the apartment
            
         2. 
            Evidence of past rentals to same protected group
            
         3. 
            Permissible bases for discrimination – noise, etc.
            
         4. 
            Have well defined criteria applied to all cases
            
            1. 
               Credit score
               
            2. 
               Rent-to-income ratio
               
            3. 
               Employment for x-years
               
            4. 
               Make the decision automatic
               
   5. 
      Fair Housing Justice Center v. Silver Beach Gardens Corp.
      
      1. 
         Holding: Discrimination  references from current residents to screen black ppl
         
   6. 
      Handicap – Is Π handicapped per statute? Is reasonable accommodation possible?
      
4. 
   
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