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Germans, and even Anglo-Saxons are covered.29 Other relevant federal statutes include the Americans with Disabilities Act,30 which mandates various accommodations for persons with disabilities. In the landlord-tenant context this Act has generated a stream of litigation over whether pets must be allowed despite a no-pets policy on the ground that they are service animals and so protected under the reasonable accommodation mandate of the statute. State and local law can also go beyond federal law. This is particularly important in areas, such as sexual orientation, in which federal law has not yet afforded protection. State courts have struggled with the issue of whether landlords with religious objections, for example, have a state constitutional right to refuse to rent to cohabiting couples who claim protection under state laws against discrimination on the basis of martial status.31 Often state legislatures have not spoken with one voice over time about their policy toward cohabitation. States and localities are free to experiment with protecting additional classes, but at the risk of encouraging separatism of various groups. Again, there is a tradeoff between integrationism and other rationales for protection.
• Owner Powers
Owners have more than the right to invoke trespass law subject to the qualifications just discussed. They also have a number of ancillary powers that fit into the “gatekeeper” family. These include the ability to grant and revoke licenses, confer temporary possession on a baliee, abandon or destroy property, and transfer property by gift, sale or to a successor upon death.
29.See, e.g., Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987); Saint Francis College v. Al-Khazraji, 481 U.S. 604, 612 (1987).
30.42 U.S.C. §§ 12101–12213.
31.See, e.g., Attorney General v. Desilets, 636 N.E.2d 233 (Ma. 1994).
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Licenses
The power to license is basically the ability of the owner to waive the owner’s right to exclude. A licensee is not a trespasser, but someone who exceeds the scope of the license does trespass. A dinner guest who rifles through the host’s bedroom would be an example.
License law is very confused in part because older law required that robust property rights be in writing (under the Statute of Frauds), and licenses are generally oral. Nevertheless some owners desired to make licenses irrevocable. A license coupled with a grant was presumed to be irrevocable; if a person had a right to take timber from another’s land (sometimes called a “profit”), the license needed by the right-holder in order to exercise that right could not be revoked. Also, the equitable device of estoppel would apply where a licensee invested reasonably in the license (e.g., by paving a road), and it would be unjust for the landowner to revoke the license. In such situations we can even speak of an easement by estoppel. Irrevocable licenses are much like easements (rights to use), which we take up in Chapter 8, except that an easement is enforceable against third parties (in rem), and it is not clear that a license that has become irrevocable by estoppel is in rem. In any event, most disputes are between the licensee and the licensing landowner.
Although licenses are ubiquitous in everyday life, there has not been a lot of litigation over them, leaving the law in a somewhat uncertain state. What cases there are tend to be from entertainment venues such as theaters and racetracks attempting to exclude patrons. Entertainment venues are generally not considered to be public accommodations (see above), so the question arises whether a paying customer may be ejected and what remedy if any the licensee customer should have. The analysis here is clouded by uncertainty about the relationship between a license and a contract. Not all licenses are contracts: a gratuitous license, for example, would not be supported by consideration and hence would not
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qualify as a contract. But suppose one pays for a ticket to see a show or attend a sporting event and is then refused admission. Does one have a contract for a license, a contract and a license, or just a license that should be treated like a contract? Surprisingly, the answers to these questions are not clear. Some courts assume that licenses are always revocable, and the only remedy for the purchaser of a ticket is an action for breach of contract, which would ordinarily be damages.32 Other courts have suggested that the ticket creates a license coupled with a grant to see the spectacle, which is not revocable absent good cause. Still others seem to think that the contract remedy matters here—that the theoretical availability of specific performance makes the license irrevocable.33 Finally, there is the question of whether the owner commits an assault if he or she tries to remove a patron unwilling to leave. Does a contract right (or a right to specific performance) turn the effort to eject a patron into an assault?
The case law on these questions is in an unsatisfactory state, but the tendency is increasingly to treat a license given for consideration like a contract and to determine and enforce the terms of the contract in resolving the dispute. Because the issues here mostly affect the contracting parties, businesses that want to retain the right to exclude can make their licenses more clearly revocable. The contractual approach may also do best in meeting people’s expectations. Most of the time, market pressures and concerns of reputation constrain the owners of businesses such as theaters not to eject patrons arbitrarily. This is probably the main reason these questions come up so infrequently in litigation. Nonetheless thinking about these issues is relevant for figuring out the nature of an owner’s property rights, and their extent.
32.See Marrone v. Washington Jockey Club of the District of Columbia, 227 U.S. 633 (1913) (Holmes, J.).
33.See Hurst v. Picture Theatres, Ltd., [1915] 1 K.B. 1 (Ct. App. (U.K.) 1914).
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In intellectual property, licensing is commercially important, and an IP license works differently from the traditional real property license. Like traditional licenses, an IP license is a waiver of exclusion rights. But unlike licenses generally, IP licenses are presumed to be irrevocable. In a sense IP licenses work more like easements. Restrictions in the nature of easements and covenants (servitudes) have always been regarded with suspicion when they attach to personal property and are intended to follow the property into remote hands. Similarly, under the doctrines of first sale in copyright and patent exhaustion in patent law, the owner of an IP right is not allowed to condition the sale or licensing of embodiments of the right (a book, a computer chip) upon further restrictions in the hands of remote parties. Much of the wisdom of these rules turns on whether such restrictions make the world more complicated (creating an informational externality). If so, some of the restrictions on freedom of contract from the first sale and exhaustion doctrines would be warranted.
Bailments
Owners sometimes want to give custody temporarily to another while retaining ownership. In such a relationship we call the owner giving up custody the bailor and the person who takes custody for the time being the bailee. Entrusting one’s clothes to a dry cleaner, one’s coat to a coat-check clerk, one’s car to a valet parker, or one’s lawn mower to a neighbor all are bailments. Unlike in a lease, the owner-bailor is free to resume possession at any time, and the bailment tends to give the bailee more limited rights to use than a lessee has under a lease. Because bailments serve a wide variety of purposes, the rules for finding them and the duties they imply vary by context. Many bailment cases have resulted from cars stolen from parking garages. Valet parking is clearly a bailment, but parking garages are borderline cases. The degree of control of the garage owner, expectations of security to be provided by the garage,
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whether the garage is enclosed, whether the owner keeps the car key, and potentially other factors relevant to whether there has been a transfer of possession and party expectations can come into play.34 Giving a ticket or a receipt can be important in finding there is a bailment. If the bailor gets a ticket when surrendering custody, and the ticket is supposed to be matched to the item at retrieval time, this both points to there being a bailment and also absolves the bailee of misdelivery if the bailee delivers the item to someone presenting the ticket. What does not seem to do much work is the printing on the back of a ticket disclaiming a bailment. This is interesting because bailments are in personam relationships, as between the bailor and bailee, and often arise by contract.
Traditionally when it comes to liability for lost, stolen, or destroyed property, bailees have been held to a standard of care varying according to who benefits from the bailment. If the bailment is for the benefit of the bailee, the bailee is held to a strict standard of care; an example would be the neighbor borrowing the lawn mower. If the bailment is for the benefit of the bailor, the bailee is held to a standard of slight care; an example would be leaving a laptop with a friend while going to the bathroom. If the bailment is for the benefit of both parties, reasonable care is called for; many commercial bailments, such as watch repair, would be of this type. Other sources simply replace this three-tiered system with a general standard of reasonableness that will vary in part according to who benefits from the bailment.
Duties also vary by context. As noted, the reasonable care standard applies to the injury to the chattel, its loss, and its theft by a third party. However, misdelivery falls under strict liability. This could be for historical reasons based on the cause of action (conversion rather than negligence), or perhaps collusion is a particular danger in the case of apparent misdelivery.
34. See, e.g., Allen v. Hyatt Regency–Nashville Hotel, 668 S.W.2d 286 (Tenn. 1984).