Category Archives: property law

As a Matter of Law, the Opera is Haunted

Posted on April 3, 2014 by | 16 comments

Today’s post was inspired by this question from Sara, who writes:

In the Andrew Lloyd Webber Musical The Phantom of the Opera, it is made clear that the new owners of the Opera Company and building were unaware of a chandelier-dropping, money-demanding, havoc-wreaking, stage hand-killing “opera ghost” they were to encounter squatting in their basement when they purchased the building and the company.

Would this end up being a case of “buyer beware”, where they now have to deal with this murderous costumed freak on their own, or would there be a chance of them getting their money back, since no contract they signed would have mentioned a ghost?

I would have liked to save this question for Halloween, but it’s too good a question to wait six months.  I know next to nothing about French law, so I’m going to approach it from a US perspective.  Good thing, too, because it turn out that there’s a famous New York case almost exactly on point: Stambovsky v. Ackley, 169 A.D.2d 254 (1991).  The full text of the case is worth reading if only because it is full of terrible ghost puns.

In Stambovsky a resident of New York City bought a house in the village of Nyack, a small suburb of New York.  Unfortunately for the buyer the house had a long and storied history in the community of being haunted, which the out-of-town buyer did not discover until after the purchase.  Whether the buyer was superstitious or merely concerned with the diminished resale value of a haunted house, he sought to rescind the contract on the theory that the seller should have disclosed the house’s haunted status.

Ordinarily a court might balk at having to determine whether a house is haunted, but in this case the seller had previously made a point of claiming in both the national and local press that the house was indeed haunted.  As a result the court held that the seller was legally prevented (“estopped”) from claiming otherwise and thus “as a matter of law, the house is haunted.”

Having thus established that the house was haunted, the court held that the case called for an exception to the general rule of caveat emptor (“buyer beware”):

Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

In light of all this, what do we make of the case of the Opera Populaire?  The buyers were evidently ignorant of the haunting, whereas the sellers were aware, and we may assume that even in the 1880s one would be unlikely to inquire as to the haunted status of a property.  So far, so good.

(NB: Since at least some members of the opera company know that the Phantom is a flesh-and-blood squatter rather than a ghost, it may be that the question is whether a seller has a duty to disclose knowledge of a dangerous squatter on the premises.  Inasmuch as this is a rare thing (especially for an otherwise legitimately occupied and used building) that would be very difficult for a prospective buyer to ascertain on their own (not even the seller knew where the Phantom’s lair was) it seems that a seller would have the same duty to disclose a real Phantom as a spectral one.)

However, a key difference from Stambovsky is that the sellers did not create the condition.  It’s not as though the former owners invited the Phantom to take up residence or popularized the story of the building being haunted (as far as I know).  It could be argued that they perpetuated it by not taking adequate steps to rid the building of the Phantom, but on balance I’m not sure that’s enough.  In Stambovsky the seller “deliberately fostered the public belief that her home was possessed,” whereas at least originally the story of the Phantom was mostly a matter of whispered rumors.  The Stambovsky court repeatedly emphasized the seller’s prior actions, which are mostly lacking in this case.

Thus, the outcome in this case would probably turn on the extent to which the seller had traded on the opera house’s haunted state, but there would at least be an argument for the buyers undoing the sale.  The exception to caveat emptor created in Stambovsky might not reach quite that far, however.

16 Comments

Posted in mailbag, property law

The Flash and Property Rights

Posted on February 20, 2014 by | 20 comments

More mailbag questions today, this one inspired by this scene in The Flash Vol. 3, #2.  Charles asks:

Now, what the Flash does here is pretty freaking cool, but as you can see in my tags… what happens afterwards? Who owns that building? Do the tenants have to pay rent? Is there going to have to be a contract worked out between the landowners and the Flash? Even if it passes code, will it still be approved for someone to live in because the Flash, from all appearances, isn’t a certified home builder?

There are a lot of questions here, but let’s start at the beginning.

I. Who Owns the Building?  And What About Rent?

Regardless of the prior ownership situation, it’s clear that The Flash is offering the building as a gift.  Acceptance of that gift won’t require a contract (indeed gratuitous transfers are a classic example of a situation in which a contract does not exist).  Whether the owner will accept that gift is the real question.

If the owner of the prior building is the same as the owner of the land it sat on, then they’re unlikely to turn down a nice new building (assuming we can handwave any building code issues).  But if the landowner is not the same as the building owner, then the landowner might have welcomed the opportunity to terminate their agreement with the building owner, perhaps to consolidate lots, rezone the property, redevelop, or simply to sell or lease to someone else.  They might not be so keen on the new building.

It is also possible that the building and land were owned by the tenants themselves, which would probably simplify matters.

In any event, the tenants would almost certainly have to continue to pay rent.  They might not have to renegotiate their leases.  Apartment lease agreements commonly refer to a unit at an address, not to a specific building.  They also typically have clauses dealing with the destruction of the building, but from what I’ve seen of lease agreements it’s entirely possible that the tenants would have a right to continue to lease a unit in the new building (assuming the building owner accepted the gift, etc).

II. Building Code and Permit Issues

Now we start getting into the real problems.  In addition to The Flash (presumably) not being a licensed contractor, he certainly didn’t pull the required permits for rebuilding.  There may not be much legal leeway for the building to be approved without those licenses and permits.  And there are good reasons for this: we’re given to understand that The Flash did a good job of rebuilding, but what if he missed something?  It might not be so easy for the injured party to haul him into court.

And moreover, although the tenants ask “where are we going to live now?”, unless there’s a housing shortage the answer is “another apartment, since you can terminate the lease for the now non-existent one.”  To the extent that their property was destroyed, well, that’s what renter’s insurance is for.  Now, they may not have had insurance, and finding and moving into a new place is costly.  But it seems to me that The Flash could have more easily (and legally) used his powers to quickly make a bunch of money and then just given that to the tenants.  That might be more realistic, but it wouldn’t be very fun.

III. Conclusion

More questions remain: where did he get the building materials?  How did he pay for them?  If he could buy a building’s worth of materials, why not just give the tenants the money?  But the bottom line seems to be that even if he could convince the landowner to accept the gift of the building and the city to approve its construction, it probably wasn’t the best way to handle the situation.  It did make for an awesome comic book scene, though.

20 Comments

Posted in insurance, mailbag, property law

Pacific Rim

Posted on August 12, 2013 by | 23 comments

If you take legendary anime franchise Neon Genesis Evangelion and strip out the pseudo-oedipal pop psychology, crushing angst, fan service, crypto-Judeo-Christian imagery, and enormously surrealistic endings, you can get a pretty good idea of what Pacific Rim is like: ten-story mecha beating up gigantic biological monsters. Good times.

For our purposes, there is a legal issue raised by the movie. We’re going to just sort of hand-wave the Jaeger project as a necessary plot device. But the concept of the “Life Wall,” a massive coastal wall combined with a multi-hundred kilometer safe zone around the Pacific coastline does raise an interesting question about eminent domain and Fifth Amendment takings. Continue reading →

23 Comments

Posted in constitutional law, movies, property law

Man of Steel

Posted on June 18, 2013 by | 35 comments

I just got out of Man of Steel, and there’s something of a doozy of a legal question pretty early on. There are some very mild spoilers inside, but no real plot points, so proceed at your discretion. Continue reading →

35 Comments

Posted in civil procedure, constitutional law, movies, property law, Superman

Iron Man 3: Property Law and Medical Experimentation

Posted on May 9, 2013 by | 15 comments

We started talking about Iron Man 3 on Monday with some questions sent to us by a lucky reader who caught a sneak preview. Now we’ll take a look at two more issues: property law and medical experimentation.

Without giving too much away, we can say that at one point in the movie, Stark gives out his home address on live TV. Shortly thereafter, the press and bad guys show up and things start to get a bit hairy. The movie seems to assume that this would not have happened if Stark hadn’t given out his address. That strikes us as. . . dodgy. Further, the movie takes some inspiration from the Iron Man: Extremis storyline, and though the details of Extremis seem to vary quite a bit from the source material, both involve experimental medical injections. So we’ll talk about those issues as well. Continue reading →

15 Comments

Posted in Iron Man, movies, property law, torts

Law and the Multiverse Classics – Christmas Edition

Posted on December 24, 2012 by | 4 comments

Many parts of the world will observe Christmas tomorrow.  In case you missed it two years ago—or want to check it out again—here’s our classic post on Santa Claus and the law.

4 Comments

Posted in criminal law, property law, torts

Green Lantern # 76

Posted on December 7, 2012 by | 25 comments

With Green Lantern # 76, first released in April 1970, DC started a radically different project than anything they’d done with the title before. For the next fourteen or so issues, Green Lantern would team up with Green Arrow to travel the country—mostly the Pacific Northwest, it seems—to find “the real America” and deal with pressing, real-world social issues along the way. It’s timely that we look at this now, for not only is Arrow now running on The CW, but DC has re-released this iconic run in a trade paperback. One imagines that this might have been timed to coincide with the show.

The run is not renowned for its subtlety—comic books were largely targeted at teenage boys (as they mostly still are) and hadn’t gained the sheen of respectability they now enjoy—but it does have this classic page, where a superhero is actually asked why they seem to be so useless.

Anyway, as one might imagine, this run is chock full of stuff for us to write about. In the first issue, #76, we have the case of a slumlord who gets in a street altercation and is allegedly planning to raze a tenement he owns. Continue reading →

25 Comments

Posted in criminal law, property law

Law and the Goonies

Posted on October 24, 2012 by | 8 comments

A while back we got a question from JD, who asked:

[In The Goonies], would they really have been able to keep the jewels Mikey got off the pirate ship? Or would the State have asserted ownership of the discovered “historical relics”?

If you haven’t seen The Goonies, you should.  It’s a classic 80s movie, and although it was directed by Richard Donner, the story was written by Stephen Spielberg, and the movie has his fingerprints all over it.  The Blu-Ray edition came out a couple of years ago, and we can recommend it.  For more nostalgia, check out the cast reunion video that Empire magazine put together.

Anyway, back to the question.  We’ve written about lost property before, including treasure troves.  In this case the issue is complicated by two facts: 1) the movie is set in Oregon, so we have to apply Oregon law and 2) the treasure is on a boat.

I. Oregon Law and Lost Property

As you might guess for a state high up on the west coast, there aren’t too many Oregon cases dealing with treasure (just what was a 17th century pirate doing in northwest Oregon anyway?).  But there are enough to get some basic definitions.

In Oregon, a treasure trove is the property of the finder and consists of “[m]oney or coin, gold, silver, plate, or bullion found hidden in the earth or other private place, the owner thereof being unknown.”  Bergeron v. Aero Sales, Inc., 134 P.3d 964, 969 (Or. Ct. App. 2006) (quoting Jackson v. Steinberg, 186 Or. 129 (1948)). “The treasure must have been hidden or concealed so long as to indicate that its owner, in all probability, is dead or unknown.”  Jackson v. Steinberg, 186 Or. at 140.

Notably, “the ownership or possession of the land upon which [treasure trove or abandoned property] was found is immaterial.”  Hill v. Schrunk, 292 P.2d 141, 142 (Or. 1956).  “It seems to be the principle respecting treasure trove, owing to its peculiar nature of being coin, that the present property is in the finder, as against every one but the true owner, provided that the true owner is unknown, and it matters not where or when the same is found, so that it is secreted in the earth or other private place.” Jackson at 144 (quoting Ferguson v. Ray, 44 Or. 557 (1904)).

One-Eyed Willie’s ship (and thus the treasure) was hidden in an underground lagoon, which seems to count as both hidden in the earth and a private place.  One-Eyed Willie is obviously dead, and I don’t recall any descendants being discussed in the movie, certainly not any known ones.  And it doesn’t matter that the Goonies found the treasure on somebody else’s land.  So the Goonies may have a legitimate claim to the jewels as part of a treasure trove.

II. Admiralty Law

Here’s where it gets sticky.  If the treasure is considered a treasure trove, then the answer is easy enough.  But the treasure wasn’t buried underground as such; it was on a boat floating on an underground lake.  This means it might actually be a salvage operation, and salvage and treasure trove are mutually exclusive.  Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 525 (S.D. Fla. 1978), aff’d, 621 F.2d 1340 (5th Cir. 1980), aff’d in part, rev’d in part on other grounds, 458 U.S. 670, (1982).  So what is salvage, exactly?

“Salvage” is the compensation or reward allowed to persons by whose voluntary assistance to a ship at sea or its cargo, or both, have been saved in whole or in part from impending sea peril or by which such property has been recovered from actual peril or loss, as in cases of shipwreck, dereliction, or recapture.

Am. Jur. 2d Salvage § 1.  Since the ship was still more-or-less seaworthy, this would seem to be a case of a derelict ship rather than a shipwreck.  If the Goonies had actually engaged in a salvage operation then they would not have any right to the ship or its contents but rather only to receive a salvage award.  That means no fair keeping the jewels, but the salvage award would be more than enough to compensate.  The problem is that the boat went sailing off into the ocean, and getting a salvage award can take years.  That’s cold comfort when the evil Astoria Country Club is breathing down your neck.

Hope is not yet lost, however.  Salvage only applies to ships that have not been abandoned by their owners.  Columbus–America Discovery v. Atlantic Mut. Ins., 974 F.2d 450, 459 (4th Cir.1992).  When a ship has been abandoned, then a different law applies, the law of finds.

Under the law of finds, the finder gets the ship and its contents, not a salvage award.  Helpfully for this case, abandonment can be inferred when neither the owner nor their heirs have attempted to reclaim the vessel for a considerable length of time.  See, e.g., Marex Intern., Inc. v. Unidentified, Wrecked and Abandoned Vessel, 952 F.Supp. 825, 828-29 (S.D. Ga.  1997) (holding that a vessel sunk in 1840 was properly considered abandoned).  Willie’s ship, The Inferno, is certainly old enough to qualify as abandoned, and again there are no signs of any heirs.  Under the law of finds, the Goonies could sue to establish title to the ship and its contents.  If no heirs showed up to contest it, it would be theirs.

Even under the law of finds there is a catch, however.  The Inferno may be an historic shipwreck.  If it is, then the court could impose an archaeological duty of care before handing over title.  Marex, 952 F.Supp. at 829.  The Goonies would also have to show some reasonable prospect of success at recovering the ship.  Given the Goonies’ fairly cavalier approach to treasure hunting (and the fact that the movie ends with the ship floating out to sea), bringing in some professional archaeologists and recovery experts might not be a bad idea.

III. Conclusion

Whether the law of lost property or admiralty applies, the Goonies just might have a good claim to the treasure.  The law of lost property would probably treat them better, however.

8 Comments

Posted in mailbag, movies, property law

The Uniques II: Judicial Trusts and Minors

Posted on June 29, 2012 by | 7 comments

We’re returning to our discussion of The Uniques (one, two), and this time we’re looking at a set of topics sort of implicit in the premise of the series but raised directly in a few places. Specifically, we’re looking at the way the series treats minors, both in general and in terms of inheritance. Continue reading →

7 Comments

Posted in estate law, family law, property law

Who Owns Wolverine’s Bones?

Posted on May 18, 2012 by | 58 comments

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, “on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

58 Comments

Posted in constitutional law, contracts, mailbag, property law, X-Men