text:
A cushion for a patient interface includes an outer membrane providing a sealing structure adapted to form a seal with the patient's face in use and an underlying membrane generally spaced away from the outer membrane. The underlying membrane provides a support structure for the outer membrane. The outer membrane and the underlying membrane each have an inner edge which defines an aperture to receive the patient's nose in use. The underlying membrane is segmented along its inner edge.
This application is the US national phase of international application PCT/AU2005/000803 filed 3 Jun. 2005, which designated the U.S. and claims the benefit of Australian Provisional Application No. 2004902979 filed Jun. 3, 2004, each incorporated herein by reference in its entirety.
The invention relates to treatment of sleep disordered breathing. In particular, the invention relates to a cushion for a patient interface used for treatment of sleep disordered breathing.
The use of nasal Continuous Positive Airway Pressure (nasal CPAP) to treat Sleep Disordered Breathing (SDB), for example Obstructive Sleep Apnea (OSA), was invented by Sullivan (See U.S. Pat. No. 4,944,310). Such treatment is typically accomplished using a source of air at positive pressure (e.g., a blower or flow generator) connected to a patient interface (e.g., a mask) via an air delivery conduit. To maintain a suitable pressure at the entrance to the patient's airways, it is necessary to provide a suitable seal between the patient interface and the patient's face. Early masks were glued to a patient's face every night. Today, however, the patient interface is usually held in position with headgear. Treatment is very successful in reducing SDB. However, gas pressurized in the range of 4-20 cmH2O can be noisy and uncomfortable. Poorly fitting masks can provide an inadequate seal against leak. After wearing a mask all night, some patients can have pressure sores on their faces, especially in such sensitive regions as the nasal bridge. Thus, mask designers and manufacturers are constantly striving to provide patient interfaces which provide a comfortable seal.
A variety of masks are available, such as nasal, full-face, and nose and mouth masks.
ResMed's MIRAGE® mask provided a significant improvement in masks for CPAP treatment. FIGS. 1-3 illustrate an embodiment of ResMed's MIRAGE® mask. It is available in both nasal and full-face versions. In the illustrated embodiment, the mask 2 includes (i) a rigid shell or frame 3 that defines a nose-receiving chamber, and (ii) a face-contacting cushion 4. The cushion 4 plays a role in improving the comfort and seal of the mask. For example, see U.S. Pat. Nos. 6,112,746; 6,357,441; 6,581,602 and 6,634,358. Other aspects of the mask, such as a forehead support and vent also play a role in the fit, comfort, and noise of a mask.
As shown in FIGS. 4-6, the cushion 4 of the MIRAGE® mask includes a dual membrane structure. As illustrated, the cushion 4 includes a thinner outer membrane 6 that is spaced away from a thicker inner or underlying membrane 8 at their inner edges.
The present invention is particularly directed towards a cushion with an improved inner or underlying membrane.
One aspect of the invention relates to a cushion for a respiratory mask having a segmented support structure.
Another aspect of the invention relates to a cushion for a respiratory mask having a dual membrane structure with an outer membrane and an underlying membrane divided into a series of finger portions.
Another aspect of the invention relates to a cushion for a patient interface. The cushion includes an outer membrane providing a sealing structure adapted to form a seal with the patient's face in use and an underlying membrane generally spaced away from the outer membrane. The underlying membrane provides a support structure for the outer membrane. The outer membrane and the underlying membrane each have an inner edge which defines an aperture to receive the patient's nose in use. The underlying membrane is segmented along its inner edge.
Still another aspect of the invention relates to a cushion adapted to be mounted on a frame of a patient interface for use with treatment of sleep disordered breathing. The cushion includes an outer membrane and an underlying membrane. The outer membrane is thinner than the underlying membrane and is generally spaced away from the underlying membrane and in use is adapted to contact a facial region of a patient. The underlying membrane has an inner edge defining an aperture and is divided along the edge to form a series of finger portions.
Yet another aspect of the invention relates to a cushion for a patient interface. The cushion includes a membrane and an underlying support structure provided along a side of the cushion to support the membrane. The underlying support structure is segmented.
FIGS. 13-14 show rear and side views of a cushion of the mask of FIG. 7, and the cushion opening has not been cut from molding.
In a dual walled cushion, the outer wall (outer membrane) can define a sealing structure and the inner wall (inner membrane) can define a support structure. A seal can form when a patient's face is lightly pressed against the outer membrane. However, the outer membrane will easily flex upon contact with the patient's face. The inner membrane is generally thicker and more rigid than the outer membrane. When a patient's face presses against the outer membrane, the gap between the two membranes reduces. At a larger contact force, there may be no gap between the two membranes. With a yet higher contact force, the inner membrane will also begin to flex. In response to a contact force from a patient's face to the cushion, the cushion will provide a reaction force from the cushion to the patient's face. The size and direction of the resultant reaction force in a particular region will depend upon the face and cushion properties in that region.
FIG. 7 illustrates a patient interface in the form of a full-face mask 10 including a cushion 14 in accordance with an embodiment of the invention. The cushion 14 is structured to be attached to a substantially rigid frame 12 associated with an air delivery tube. The cushion 14 may be removably or permanently attached to the frame 12 in any suitable manner.
As illustrated, the cushion 14 has a thin outer membrane 16 and a thicker underlying membrane 18 generally spaced away from the outer membrane 16. The outer membrane 16 provides a sealing structure to form a seal with the patient's face, and the underlying membrane 18 (also referred to as an underlying support) provides a support structure for the outer membrane 16. Both the outer and underlying membranes 16, 18 have an inner edge which defines an aperture through which a nose passes in use.
In the illustrated embodiment, the outer membrane 16 forms a seal with a nasal bridge region NB, cheek regions CR, and a lower lip region LL of the patient's face. Also, the cushion 42 has a double-walled construction, i.e., outer membrane 16 and underlying membrane 18, in the cheek regions CR and a single-walled construction, i.e., outer membrane 16, in the nasal bridge and lower lip regions NB, LL. The single wall construction at the top and bottom of the cushion 14 allows flexibility to accommodate a wide range of patients. However, the cushion 14 may have any other suitable construction, e.g., single walled, triple walled or more walled construction, in any suitable region of the cushion 14.
As best shown in FIGS. 8-10, the underlying membrane 18 is segmented along its inner edge. In the preferred embodiment, the line of segmentation is generally perpendicular to the edge, however in other forms it may not be. The segmentation provides a set of finger portions 17 interconnected by webbing 19.
In the illustrated embodiment, the underlying membrane 18 is a continuous material with the webbing 19 formed in a different plane than the finger portions 17. However, the webbing 19 may have other suitable configurations. For example, the webbing 19 may be in the form of one or more connecting members than extend between and interconnect at least adjacent portions of adjacent finger portions 17. The one or more connecting members may be positioned between intermediate portions of adjacent finger portions 17 so that tips of the finger portions are exposed. Alternatively, the one or more connecting members may be positioned between end portions of adjacent finger portions 17 so that the connecting members are substantially continuous with tips of the finger portions. Other arrangements are also possible to reinforce and interconnect the finger portions 17.
Each finger portion 17 is generally independently flexible. That is, a local force on one group of finger portions 17 will not directly transfer to an adjacent group. Thus, flexion of the cushion 14 in one region will not necessarily cause flexion of the cushion 14 in an adjacent region to the same extent as the prior art. This arrangement provides independent suspension of different facial regions in contact with the cushion 14, and allows the cushion 14 to conform more closely to the patient's face.
Furthermore, in the nasal bridge region NB and lower lip/chin region LL (see FIG. 7), the underlying membrane 18 is progressively or completely shortened. Reducing or eliminating the underlying membrane 18 in these regions of the cushion 14 means the outer membrane 16 can “give” more when a face contacts it. This arrangement can improve comfort in these sensitive regions.
In one form, the cushion 14 is mechanically equivalent to a series of composite springs placed around a nose receiving aperture of the frame. The composite spring has mechanical properties derived from the combination of the sealing and support structures, which in one form are two membranes. The properties of the “springs equivalents” in the nasal bridge and lower lip/chin regions NB, LL can be and preferably are different than those in the cheek regions CR (see FIG. 7), in this embodiment.
FIGS. 11 and 12 illustrate a cushion 214 according to another embodiment of the invention. In this embodiment, the cushion 214 includes an outer membrane 216 and underlying membrane 218 segmented into a set of finger portions 217. In contrast the cushion 14, there is no webbing between the finger portions 217 of the cushion 214. Like the previous embodiment, the fingers 217 are progressively shorter in a nasal bridge region NB of the cushion 214 (see FIG. 12). In an embodiment, the depth and/or length of the slot between adjacent finger portions 217 may be selectively adjusted to adjust the flexibility of selected finger portions 211. The depth and/or length of the slot may be adjusted so that the finger portions 217 are more flexible in certain regions of the patient's face.
In the two above-described embodiments, the cushion 14, 214 is constructed from silicone. However, other materials may be used, such as gel and foam. FIGS. 11-12 show a MIRAGE® full face cushion modified in accordance with the invention.
Other views of the segmented cushion 14 with webbing are shown in FIGS. 13 and 14. In these views, the cushion opening has not been cut from molding.
The cushion 14, 214 described above has several advantages. For example, the cushion 14, 214 is structured to alleviate the pressure of the cushion on the patient's face. Also, the cushion, 14, 214 is structured to conform and seal to different patient facial profiles. Further, the cushion 14, 214 is locally compliant.
Although our invention has been described with reference to particular embodiments, it is to be understood that these embodiments are merely illustrative of the application of the principles of the invention. Numerous modifications may be made therein and other arrangements may be devised without departing from the spirit and scope of the invention. For example, whilst in a preferred embodiment, the cushion includes two membranes, it is also applicable to cushions with one, three or more membranes. Furthermore, the principles of the invention may be applied to a variety of different patient interfaces, such as nasal mask, nose and mouth masks, full-face masks, nasal prongs and nasal cushions. In different cushions, the role of sealing and support structures can be combined into one physical structure. Fingers may be shaped or adjusted to suit the needs of individual patients.
Also, the various embodiments described above may be implemented in conjunction with other embodiments, e.g., aspects of one embodiment may be combined with aspects of another embodiment to realize yet other embodiments. In addition, while the invention has particular application to patients who suffer from OSA, it is to be appreciated that patients who suffer from other illnesses (e.g., congestive heart failure, diabetes, morbid obesity, stroke, barriatric surgery, etc.) can derive benefit from the above teachings. Moreover, the above teachings have applicability with patients and non-patients alike in non-medical applications.
wherein the outer membrane and the underlying membrane each have an inner edge which defines an aperture to receive the patient's nose when the cushion is worn, the inner edge of the outer membrane and the inner edge of the underlying membrane are configured to conform to the patient's face when the cushion is worn, and the underlying membrane is segmented along its inner edge to provide a set of independently flexible finger portion.
2. A cushion according to claim 1, wherein the segmented underlying membrane is structured to provide local compliance.
3. A cushion according to claim 1, wherein the segmented underlying membrane is structured to provide relative movement along its inner edge in conformance with different facial regions in contact with the cushion when the cushion is worn.
4. A cushion according to claim 1, wherein the underlying membrane is thicker than the outer membrane.
5. A cushion according to claim 1, wherein the outer membrane forms a seal with nasal bridge, cheek, and lower lip regions of the patient's face when the cushion is worn.
6. A cushion according to claim 1, wherein the underlying membrane is provided in cheek regions of the patient's face.
7. A cushion according to claim 1, wherein at least two of the finger portions are interconnected by webbing.
8. A cushion according to claim 1, wherein the underlying membrane includes a line of segmentation that extends substantially perpendicular to its inner edge.
9. A cushion according to claim 1, wherein the underlying membrane is reduced or eliminated in at least one of a nasal bridge region and a lower lip region of the patient's face.
a cushion according to claim 1.
11. A cushion according to claim 1, wherein the inner edge of the outer membrane and the inner edge of the underlying membrane both curve inwardly from a side wall in a cantilever manner towards a nose receiving cavity of the cushion.
12. A cushion according to claim 1, wherein the segmented underlying membrane provides a series of independently flexible portions along its perimeter structured to allow the cushion to conform to different patient facial profiles.
the underlying membrane having an inner edge defining an aperture and being divided along the inner edge to form a series of independently flexible finger portions, wherein the inner edge of the underlying membrane is configured to conform to the patient's face when the cushion is worn.
14. A cushion according to claim 13, wherein the finger portions are interconnected by webbing.
15. A cushion according to claim 13, wherein the underlying membrane includes a line of segmentation that extends substantially perpendicular to the inner edge.
16. A cushion according to claim 13, wherein the underlying membrane is reduced or eliminated in at least one of a nasal bridge region and a lower lip region of the patient's face.
17. A cushion according to claim 13, wherein the underlying membrane provides local compliance.
18. A cushion according to claim 13, wherein the underlying membrane is structured to provide relative movement along its inner edge in conformance with different facial regions in contact with the cushion when the cushion is worn.
19. A cushion according to claim 13, wherein the outer membrane forms a seal with nasal bridge, cheek, and lower lip regions of the patient's face when the cushion is worn.
20. A cushion according to claim 13, wherein the underlying membrane is provided in cheek regions of the patient's face.
21. A cushion according to claim 13, wherein the inner edge of the underlying membrane curves inwardly from a side wall in a cantilever manner.
wherein the segmented underlying support structure provides a series of independently flexible portions along its perimeter that are structured to allow the cushion to conform to different patient facial profiles.
23. A cushion according to claim 22, wherein the underlying support structure is an underlying membrane.
24. A cushion according to claim 22, wherein the membrane and the underlying support structure each have an inner edge that curves inwardly from a side wall in a cantilever manner towards a nose receiving cavity of the cushion.
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Application No. 05
Application No. 07784697
Application No. 2003275762
Application No. 09161984
Application No. 03810331


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Appeal from the Circuit Court, Miami-Dade County, Daryl E. Trawick, J.
Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
Before GREEN, SUAREZ, and ROTHENBERG, JJ.
The appellant was charged by information with possession of a controlled substance; conspiracy to traffic an illegal drug; and trafficking an illegal drug. After a jury trial, the appellant was convicted of possession of a controlled substance and trafficking an illegal drug. He was acquitted of conspiracy to traffic an illegal drug. Appellant was sentenced to five years in prison for the possession conviction and to a concurrent fifteen year minimum mandatory sentence for the trafficking conviction.
On appeal, the appellant first asserts that the trial court abused its discretion when it admitted certain photographs as impeachment evidence during the state's rebuttal; the trial court had excluded the photographs earlier as a remedy for the State's Richardson violation. Appellant argues that the Florida Supreme Court has recognized that Richardson protections are also fully applicable to impeachment evidence. See Smith v. State, 500 So.2d 125, 127 (Fla. 1986). On the record before us, however, we conclude that any error in this regard was harmless. See State v. DiGuilio, 491 So.2d 1129, 1136 (Fla. 1986).
See Richardson v. State, 246 So.2d 771 (Fla. 1971).
The appellant next asserts, and the State properly concedes, that under Gibbs v. State, 698 So.2d 1206 (Fla. 1997), the convictions and sentences for both possession and trafficking in the same heroin violate double jeopardy and cannot stand. Accordingly, we vacate the conviction and sentence for simple possession and remand with instructions to dismiss this count.
Finally, the appellant argues that his sentence for the trafficking count cannot stand because the statute under which it was imposed, section 893.135, Florida Statutes, as amended by chapter 99-188, Laws of Florida, is unconstitutional for violating the single-subject rule. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We previously reached a contrary conclusion in State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), and certified conflict with Taylor. In Franklin v. State, 887 So.2d 1063 (Fla. 2004), the Florida Supreme Court affirmed our decision that there was no constitutional impairment to this statute. Accordingly, we find no merit to the appellant's final argument on appeal.
For the foregoing reasons, we affirm in part, vacate in part, and remand with instructions.

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D.C. Law Library - § 1–301.85. Attorney General salary.
↪ § 1–301.85. Attorney General salary.
§ 1–301.84. Forfeiture of the position of Attorney General.
(a) Except as provided in subsection (b) of this section, the Attorney General for the District of Columbia shall be paid at an annual rate equal to the rate of basic pay for level E5 on the Executive Schedule pursuant to § 1-610.52.
(b) An Attorney General for the District of Columbia elected under § 1-204.35 shall receive compensation equal to the Chairman of the Council of the District of Columbia as provided in § 1-204.03(d).

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TAMPA, Fla. — A medical technology company and its CEO misrepresented the clinical study results for its plasma-based surgical product in violation of federal securities laws, a shareholder argues in an April 17 securities class action complaint filed in Florida federal court (Kyle Pritchard v. Apyx Medical Corp., et al., No. 19-0919, M.D. Fla.).
NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on April 17 ruled that a federal district court did not err in holding that a law firm’s former attorney, who allegedly assisted R. Allen Stanford in operating his massive Ponzi scheme, was immune from civil lawsuits brought by non-clients, rejecting plaintiffs’ contentions that three exceptions exist permitting the law firm’s liability (Samuel Troice, et al. v. Greenberg Traurig LLP, et al., No. 17-11464, 5th Cir., 2019 U.S. App. LEXIS 11230).
CAMDEN, N.J. — An investor group and a pension trust filed motions on April 12 to consolidate related New Jersey federal court securities class actions against a reinsurance company and former executive officers as well as each seeking appointment as lead plaintiff over allegations of misrepresentation in underwriting and risk management techniques and a reinsurance portfolio’s risk (Michael Wigglesworth v. Maiden Holdings Ltd., et al., No. 19-05296, D. N.J.).
DENVER — A federal court did not err in dismissing a shareholder derivative lawsuit brought on behalf of The Western Union Co. for failure to plead demand futility because lead plaintiffs failed to sufficiently show that a majority of Western Union’s board of directors faced a substantial risk of liability for disregarding the company’s failure to implement an effective anti-money-laundering-compliance program (AML-compliance program), a 10th Circuit U.S. Court of Appeals panel ruled April 16 (City of Cambridge Retirement System, et al. v. Hikmet Ersek, et al., No. 17-1381, 10th Cir., 2019 U.S. App. LEXIS 11077).
RICHMOND, Va. — Without providing further detail, a Fourth Circuit U.S. Court of Appeals panel on April 16 affirmed a federal district court’s dismissal of an investor lawsuit brought against two-broker dealers for alleged violations of state and federal securities law and common-law fraud (Alfred L. Snapp Jr., et al. v. Lincoln Financial Securities Corp., et al., No. 18-1344, 4th Cir., 2019 U.S. App. LEXIS 11092).
WASHINGTON, D.C. — The U.S. Supreme Court on April 15 heard oral arguments in an appeal of a Ninth Circuit U.S. Court of Appeals’ ruling in a securities class action lawsuit that Section 14(e) of the Securities Exchange Act of 1934 requires only a showing of negligence and not scienter but questioned the petitioners’ attorney as to why his clients did not raise their argument on appeal earlier in the litigation (Emulex Corp., et al. v. Gary Varjabedian, et al., No. 18-459, U.S. Sup.).
CHICAGO — A Seventh Circuit U.S. Court of Appeals panel on April 11 determined that a federal district court did not err in dismissing a pro se plaintiff’s lawsuit against another security holder of a company in which the plaintiff had invested for federal securities law and common-law violations because the plaintiff’s claims were time-barred and not subject to tolling (Jackson Fairbanks Veit v. Angela Frater, et al., No. 18-2623, 7th Cir., 2019 U.S. App. LEXIS 10711).
WASHINGTON, D.C. — U.S. Supreme Court review of a Ninth Circuit U.S. Court of Appeals’ holding that defendants in a Public Company Accounting Oversight Board (PCAOB) action forfeited their constitutional arguments against the appointment of the hearing officer by not specifically naming the appointments clause of the U.S. Constitution in their arguments is unwarranted because the Ninth Circuit’s decision does not conflict with any decision of another federal court of appeals, the Securities and Exchange Commission argues in a March 28 opposition brief filed in the Supreme Court (Kabani & Co. Inc., et al. v. U.S. Securities and Exchange Commission, No. 18-1117, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 1194).
NEWARK, N.J. — A federal judge in New Jersey on March 31 ruled that the lead plaintiff in a securities class action lawsuit against a pharmaceutical company and certain of its former executive officers failed to sufficiently plead any actionable misstatements or omissions or scienter in alleging that the defendants violated federal securities laws by misrepresenting that abstracts it was expected to present at a conference did not contain new and previously undisclosed information (Jessica Fergus v. Immunomedics Inc., et al., No. 16-3335, D. N.J., 2019 U.S. Dist. LEXIS 55386).
SAN FRANCISCO — A shareholder of a cloud computing software company sued the company and two of its senior officials in California federal court on March 29, alleging that the defendants issued misrepresentations regarding the company’s growth investment and increase in marketing and sales activities in violation of federal securities law (Ryan Scheller v. Nutanix Inc., et al., No. 19-1651, N.D. Calif.).
NEW YORK — A federal district court applied the wrong legal standard in assessing shareholders’ post-dismissal motion for leave to amend their complaint in a securities class action lawsuit against restaurant chain Chipotle Mexican Grill Inc. and certain of its senior executives and determining that post-judgment amendment would be futile, the shareholders argue in an April 4 appellant brief filed in the Second Circuit U.S. Court of Appeals (Metzler Investment GmbH, et al. v. Chipotle Mexican Grill Inc., et al., No. 18-3807, 2nd Cir.).
SAN FRANCISCO — A federal district court erred in dismissing a securities class action against a medical device maker and two of its senior executives alleging violations of federal securities law because it failed to properly assess a shareholder’s falsity and scienter allegations, the shareholder alleges in a March 15 appellant brief filed in the Ninth Circuit U.S. Court of Appeals (Vicky Nguyen v. Endologix Inc., et al., No. 18-56322, 9th Cir.).
NEW ORLEANS — On rehearing, a Fifth Circuit U.S. Court of Appeals panel on April 10 ruled that a federal district court did not err in dismissing a securities class action lawsuit against a provider of orthotic and prosthetic patient care services and certain of its current and former executive officers because a pension fund failed to adequately show that the defendants acted with the requisite scienter in allegedly concealing improper accounting of the company’s Medicare reimbursements for its services in violation of federal securities law (Alaska Electrical Pension Fund v. Vinit K. Asar, et al., No. 17-50162, 5th Cir., 2019 U.S. App. LEXIS 10637).
ORLANDO, Fla. — The former associated general counsel and assistant secretary of SeaWorld Entertainment Inc. on April 9 agreed to an injunction permanently enjoining him from violating provisions of federal securities law and ordering him to pay disgorgement of ill-gotten gains in connection with his involvement in an insider trading scheme, the Securities and Exchange Commission says in an unopposed motion for entry of judgment filed in Florida federal court (Securities and Exchange Commission v. Paul Bannon Powers, No. 19-0664, M.D. Fla.).
WASHINGTON, D.C. — U.S. Supreme Court review of a Ninth Circuit U.S. Court of Appeals panel’s partial reversal of a federal district court’s dismissal of federal claims in a securities class action lawsuit is unnecessary because the Ninth Circuit did not impose a “duty to update” a “statement of historical fact that was accurate when made, where the ‘value’ or ‘weight’ of that prior statement was later ‘diminished’ by subsequent events” as petitioners argue in a petition for writ of certiorari, a shareholder argues in an April 4 opposition brief filed in the Supreme Court (Joseph P. Hagan, et al. v. Karim Khoja, No. 18-1010, U.S. Sup.).
FAYETTEVILLE, Ark. — A federal judge in Arkansas on April 8 granted final approval of a $166 million settlement in a securities class action brought against Wal-Mart Inc. and its CEO and dismissed all claims against the defendants with prejudice (City of Pontiac General Employees Retirement System v. Wal-Mart Stores Inc., et al., No. 12-5162, W.D. Ark., 2019 U.S. Dist. LEXIS 60281).
SANTA ANA, Calif. — Lead plaintiffs in a securities class action lawsuit against a restaurant chain, certain of its senior officers and others asked a federal judge in California on April 3 to grant preliminary approval of a $20 million proposed settlement (Daniel Turocy v. El Pollo Loco Holdings Inc., et al., No. 15-1343, C.D. Calif.).
CINCINNATI — In a two-page order on April 2, a Sixth Circuit U.S. Court of Appeals panel ruled that a convicted fraudster’s appeal of a federal district court’s denial of his post-conviction motions has been mooted by its ruling in a previous appeal filed by the appellant (United States of America v. John G. Westine Jr., No. 18-5883, 6th Cir., 2019 U.S. App. LEXIS 9718).

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For almost two years, the attorneys at Adam Leitman Bailey, P.C. have been compiling a list of the greatest commercial leasing cases of all time. The authors have always been fans “greatest” lists—there being something special about choosing the best among so many great people, entertainers, athletes, composers, or, in our case, cases that have had the greatest effect on leasing law. “Greatest” lists permeate our entire culture and are the basis for entire institutions like the Academy Awards, Tonies, Grammys, and the various Halls of Fame. Cooperstown, New York is a city entirely based on “greatest” lists, housing both the Baseball Hall of Fame and the greatest of the American summer opera festivals, Glimmerglas.
Law, however, is a peculiar field which, like baseball, lends itself well to actual statistical analysis of “greatness.” These “greatest” are the cases are therefore those cases that are so heavily cited to that have demonstrated they have the most important impact on landlords’ and tenants’ businesses and are those cases in ignorance of which no litigator or drafter dares to enter either a courtroom or a lease negotiation. A mere handful of cases have achieved that kind of influence in commercial landlord-tenant relations. While across the United States of America there are a number of localities having enacted residential rent regulation, for the most part in the commercial arena, the principles of governing law are those of the common law finding their roots in its development over the past thousand years at first in Britain and then later here. These cases cover stability in leasing law, mitigation of damages, lease interpretation, lease enforcement, lease violations, attorneys’ fees, court stipulations, and actual and constructive eviction. While late night television talk show hosts would no doubt list these cases in inverse order of importance, we will use them to trace the lifetime of a leasehold from negotiation through breach and enforcement.
Of necessity, this holding sets the theme for this entire article. Yes, some jurisdictions will vary from other jurisdictions about their holdings on a particular point, but the principle of stability is so important to real property law, that these jurisdictions will not lightly be persuaded to abandon their own view and hold some better view. In ancient Egypt, this principle of stability was known as maat and endured for 5,000 years. Therefore, there is no reason to believe that in New York the principle of Holy Properties will be changed any time soon. Under Holy Properties, better is simply not good enough.
Holy Properties adhered to the common law, now minority rule held only in Alabama, Georgia, Minnesota, Mississippi, New York, and West Virginia that a landlord has no duty to mitigate damages when the tenant abandons the lease. After acknowledging its minority position, the New York high court felt that the adherence to maat was so important that it overrode any considerations of having a right or better rule. The majority view imposing such a duty is set forth in the Texas decision, Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (1997) which lists leading cases from all the states on the question and for that reason, Austin Hill makes it to the “greatest case” list. But, for its preservation of maat, Holy Properties is the leading case in the nation and Austin Hill for its violation of maat, is reduced to a mere footnote.
While it is perhaps more the business of economists and MBA’s than of lawyers to make these determinations, it cannot be doubted that maat in commercial transactions, especially commercial leasing, will make a State more economically attractive for businesses seeking a new location. Nobody likes the law to be an unknown commodity.
While leasing no doubt has a flavor of conveyancing to it and was certainly understood at common law to be such, Holy Properties, supra, modern commercial leasing law is vastly more inclined to look at the lease as a contract subject to the same kinds of principles that govern contracts generally. Austin Hill Country Realty, supra; For an extended discussion, see also, Foundation Development Corp. v. Loehmann’s Inc., infra (“The interplay of property and contract law in the landlord-tenant relationship is complex. Thus, before deciding whether the breach in this case could support a forfeiture, we must examine the common law nature of that relationship.”).
It has long been the rule that ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it. Moreover, unless the terms of a lease are clear, no additional requirements or liabilities will be imposed upon a tenant.(citation omitted).
Vermont Teddy Bear Co. v. 538 Madison Realty Co.: strict adherence to the terms actually embodied in a lease.
When interpreting contracts, we have repeatedly applied the familiar and eminently sensible proposition of law that, when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms… We have also emphasized this rule’s special import in the context of real property transactions, where commercial certainty is a paramount concern.
Again we find that same concern we saw in Holy Properties, supra, the idea of “commercial certainty,” stability, or maat. And the kicker in Vermont Teddy Bear is the phrase, “In the absence of any ambiguity, we look solely to the language used by the parties to discern the contract’s meaning.” In short, if the clause is clear, it need not be sensible to be enforced.
Vermont Teddy Bear stands as something of an unsung hero of capitalism. Its proposition that a written agreement two people entered into shall be enforced no matter the severity of the consequences or the lunacy of the terms actually monumentally strengthens business relationships. Business people will only do business in a reliable province where the laws are stable and justice is invoked fairly. But fairness can only be achieved when courts enforce the agreements before them without relying on the equities or any prejudices–hence the importance of this animal of a case.
Fifty States Mgt. Corp. v Pioneer Auto Parks: Enforcement of leases as written and acceleration of rent upon default.
Cummings Properties, LLC v. National Communications Corp.: Enforcement of leases as written and acceleration of rent upon default.
Foundation Development Corp. v. Loehmann’s Inc.: Equitable non enforcement of lease acceleration clause.
In sum, the facts of this case do not justify equitable intervention. The parties freely bargained for the inclusion of a clause in their lease whereby the rent for the remainder of the lease term would be accelerated upon breach of tenant’s covenant to pay rent. … That honoring at least this aspect of its bargain may cause Pioneer fiscal hardship does not, standing alone, serve as a basis for construing the acceleration clause as a penalty under the guise of applying equitable principles to a routine commercial transaction.
In short, in a commercial transaction, the parties are to be held to the terms they negotiated, even if harsh. Cummings Properties, LLC v. National Communications Corp., 869 N.E.2d 617 (Mass. Supreme Jud. Court 2007); contra, Foundation Development Corp. v. Loehmann’s Inc., 788 P.2d 1189 (Arizona Supreme 1990) (refusing to apply a forfeiture statute or lease clause where the default is brief).
Foundation Development is a particularly important case in this entire area which not only states the view contrary to that of Fifty States and Cummings Properties, but masterfully gathers the historical and judicial precedents nationwide for the purpose.
Greenblatt v. Zimmerman: Use of “practical construction” to interpret a lease.
The ideas associated with enforcing leases are tightly tied with the ideas of interpreting them. Frequently cases discussing how a lease is to be enforced will of necessity also deal with the rules of how one is to be interpreted. Since commercial leases tend to be for longer terms than residential leases, there can be some considerable lapse in time from when a clause is written to when it falls upon a court to interpret it. So, in commercial leasing, one often comes across the idea of “practical construction” whereby a court, rather than taking a fresh look at the language in the lease itself, will look instead to how the parties actually lived under that language in the early years of the lease. Greenblatt v. Zimmerman, 132 A.D. 283, 117 N.Y.S. 18 (NY 1st Dept. 1909). If the landlord suddenly departs from that interpretation, such as in calculating the rent, the courts will rarely sustain that departure.
For example, common in commercial leases are so-called “pay now—fight later” clauses. In these, the lease contains a component of the payments that the tenant must make usually called “additional rent.” However, unlike the “base rent,” the actual numbers are not set forth in the lease. Instead, the landlord has to examine the operating expenses of the building, typically including real estate taxes and compute which of the operating expenses are properly passed along to the tenant as additional rent. Where either the lease is unclear in its writing as to which expenses count as “operating expenses” and which don’t or where there are expenses that could be characterized either way, depending on one’s point of view, disputes will arise as to how much additional rent the tenant owes.
For example, a roof repair is typically an operating expense, but a roof replacement is typically not. It therefore becomes a disputable item as to whether a particular repair was so extensive as to be essentially a replacement and therefore outside of the tenant’s fiscal obligation. Leases will often call for arbitration to resolve such disputes. However, in a “pay now—fight later” clause, the tenant must first pay the disputed amount as a prerequisite to demanding arbitration as to whether it was, in fact, owed. However, if the landlord abuses that process, the courts will enjoin the landlord’s improper calculations. See, Morgan Guaranty Trust Co. of NY v. Solow d/b/a Solow Building Co., 32 HCR 276A, 68 NY2d 779, 498 NE2d 147, 506 NYS2d 674, HCR Serial #00014289, TLC Rent 6, TLC Serial #0279 (NY Court of Appeals: 1986).
Ran First Assocs. v. 363 E. 76th St Corp.: Tenants’ entitlement to the benefit of tax abatements procured by landlord.
Clauses like the “pay now—fight later” clauses are part of the generally common phenomenon in commercial leasing of the rent being broken out into the tenant paying a base rent plus increases in the rent itself and a share of the operating expenses of the building. Often these expenses include real estate tax escalations. While leases often call for such things, they are generally silent about whether the tenant gets to share in the benefit of tax decreases the landlord manages to procure. Unless the lease says to the contrary, the tenants do indeed get such benefit. Ran First Assocs. v. 363 E. 76th St Corp., 30 HCR 520A, 297 AD2d 506, 747 NYS2d 13, NYLJ 9/16/02, 19:2, HCR Serial #00013353, TLC Taxes 1, TLC Serial #0230 (NY 1st Dept. 2002).
41 Fifth Owners Corp. v. 41 Fifth Equities Corp.: Fixtures defined.
While many leases call for fixtures becoming the property of the landlord, almost no lease attempts even a decent job at defining just what is and what is not a fixture. 41 Fifth Owners Corp. v. 41 Fifth Equities Corp., 33 HCR 30C, 14 AD3d 386, 787 NYS2d 326, NYLJ 1/18/05, 26:5, HCR Serial #00014723, TLC Fixtures 1, TLC Serial #0300 (AD1 Tom; Andrias, Saxe, Williams, Sweeny) takes the lead in filling that gap, albeit somewhat tersely. While it may no attempt to provide a comprehensive definition of the term fixture, at least it stated, “The dedicated purpose of the unit, its size and the extent of its connection to the structure render it a fixture.” We would have to conclude that a vastly smaller unit would also be a fixture if indeed it was of dedicated purpose and extensively connected to the structural fabric of the building itself. Apparently the equipment in 41 Fifth had fairly complex connections to the structure.
Jefpaul Garage Corp. v. Presbyterian Hospital in the City of New York: Definition of waiver, acceptance of rent not constituting a waiver.
Homstead Enterprises v. Johnson Products, Inc.: Acceptance of rent not constituting a waiver.
Dunbar Housing Authority v. Nesmith: Acceptance of rent not constituting a waiver.
Closely tied to the ideas behind enforcing leases are the ideas associated with when they are breached. While it is generally an ordinary exercise in lease interpretation to determine if the tenant has technically breached the lease, it is a more fact laden question to determine whether the landlord has waived that breach. The first and most important concept with waiver is its very definition. For that purpose, the leading case is Jefpaul Garage Corp. v. Presbyterian Hospital in the City of New York, 61 NY2d 442, 462 NE2d 1176, 474 NYS2d 458, TLC Waiver 1, TLC Serial #0084 (Ct of Appeals 1984) that defines a breach as a voluntary relinquishment of a known right. The two key words in that definition are “voluntary” and “known.” If the landlord is acting under compulsion, there is no waiver. However, much more importantly, if the landlord is unaware of either the right itself or the breach of it, then the landlord cannot be said to have relinquished a known right.
How does ignorance of the breach take the situation out of the definition? Let us illustrate this by way of an example. Under a rather common lease clause, if the tenant fails to have certain insurances naming the landlord as an additional insured, the tenant is in breach of the lease. It would stand to reason and indeed the law charges the landlord with knowledge of the contents of its own lease. So there is no real question that the landlord knows of the right that the tenant’s insurance insures the landlord. However, if the landlord does not know that the tenant is breaching this clause, as, for example, by fraudulently claiming that certain insurances are in place when in fact the insurance certificates are forged, then the landlord has not waived this breach if the landlord is fooled by the certificates. Why? Because the lease gives the landlord a remedy for the tenant’s breach. That remedy is itself one of the landlord’s rights, but if the landlord is kept in the dark about the breach, the landlord, while knowing of the right to be insured, does not know of the right to evict to which the breach of the insurance clause had given rise. Thus, with the falsified insurance the landlord’s right to terminate the lease is an unknown right which landlord cannot be said to have waived. The other key point of Jefpaul is that the conduct on the part of the landlord cannot be accidental or inadvertent but must have been specifically intended as a waiver. The key phrase from the decision is, “While waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred… as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise.” To the same effect are Homstead Enterprises v. Johnson Products, Inc., 540 A.2d 471 (Supreme Maine 1988) and Dunbar Housing Authority v. Nesmith, 400 S.E.2d 296 (Supreme W. Va. 1990).
TSS-Seedman’s, Inc. v. Elota Realty Company: Difference in remedies allowed by conditional limitations and conditions subsequent.
Summary proceedings, while generally regarded a derogation of common law, are now approaching the conclusion of their second century since their invention and have had ample time to develop a common law of their own. For most of that period, the courts have shown a decided hostility to the invocation of the summary remedy and the proceedings have, in many jurisdictions, betrayed a certain fragility. This is no less true in the State of New York, the geography of their invention, than anywhere else. Generally in garden variety commercial summary proceedings, especially those of the nonpayment kind, a landlord can get the relief sought. However, in summary proceedings brought not to recover funds, but rather to recover the property itself, many courts will find in the summary proceedings common law ample doctrine relegating suitors to the long, slow, and expensive common law ejectment proceeding.
The legal theory here is between two ostensibly different kinds of contingencies in leases in the event (typically) of a default by the tenant in fulfilling some obligation under the lease. In the one kind, the conditional limitation, upon the occurrence of the triggering event, the termination of the lease is automatic without any further actions by the landlord. In the other kind, the condition (a/k/a condition subsequent) the default gives the landlord the option to terminate the lease. There is nothing automatic. The landlord must exercise the option for it to take effect. TSS-Seedman’s, Inc. v. Elota Realty Company, 72 NY2d 1024, 531 NE2d 646, 534 NYS2d 925, TLC Conditions and Conditional Limitations 8, TLC Serial #0075 (Court of Appeals 1988). While it is generally easy to state this theory, it is remarkably difficult to apply it by using any kind of analytical means. But, if one applies the mechanical method of finding that the presence of a notice to cure creates a conditional limitation and the absence of one creates a condition subsequent, one will most generally come up with the correct result. However, a notice to cure will often provoke a Yellowstone injunction (see next section) and one is therefore better off with a naked termination notice, set up as a conditional limitation – if the jurisdiction where the property is located allows for it. For undeniably obsolete reasons, while conditional limitations can be the predicate of a summary proceeding, a condition subsequent can only be enforced through an ejectment action.
For all of the reasons commercial litigators condemn badly written leases and their drafters, no complaint rings louder or more justifiably than when a landlord finds its case can no longer can be maintained as a summary proceeding designed to last a few months but instead must proceed in the longer more cumbersome common law ejectment action lasting typically a few years before an order of eviction. Hence, no lesson is more important to the lease drafter than understanding, drafting and implementing conditional limitations and staying far away from the ocean of dangerous conditions subsequent.
First National Stores, Inc. v. Yellowstone Shopping Center, Inc.: Tenant’s right to litigate whether it is in breach prior to actual forfeiture of the lease.
Food Pantry, Ltd. v. Waikiki Business Plaza, Inc.: Tenant’s right to litigate whether it is in breach prior to actual forfeiture of the lease.
We must also note that in some jurisdictions, including New York and Hawaii, a procedure has been developed allowing a tenant who has received a notice to cure the opportunity to contest prior to the declaration of the termination of the lease, whether there really has been a lease violation. First National Stores, Inc. v. Yellowstone Shopping Center, Inc., 21 NY2d 630, 237 NE2d 868, 290 NYS2d 721, TLC Lease Violations 1, TLC Serial #0003 (Court of Appeals 1968); Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 575 P.2d 869 (Supreme Hawaii 1978). Jurisdictions allowing such a procedure accord the tenant an enormous safeguard permitting the tenant the opportunity to find out if the landlord was right and to put things to rights before losing a valuable leasehold. Food Pantry, supra. However, there is a cost to that benefit. The same line of authority holds that unless the tenant utilizes this procedure to obtain a tolling of the cure period actually during that period, by way of a declaratory judgment action, if the tenant actually was in default of the lease, once the cure period is up, the courts themselves have no power to fix it. These Yellowstone injunctions, as they have come to be known, are the single most powerful weapon in a tenant’s arsenal and fear of their employment has guided many a landlord’s decisions.
Hallock v. State of New York and Power Authority of State of New York: High favor to which attorney stipulations are entitled and authority of attorney.
Koval v. Simon Telelect, Inc.: High favor to which attorney stipulations are entitled and authority of attorney.
Luethke v. Suhr: High favor to which attorney stipulations are entitled and authority of attorney.
Although not itself a decision from the realm of commercial leasing, the single most influential decision in the realm commercial litigation is Hallock v. State of New York and Power Authority of State of New York, 64 NY2d 224, 474 NE2d 1178, 485 NYS2d 510, 1 TLC Stipulations 1, TLC Serial #0017 (NY Court of Appeals 1984). The theme of this article is that of case law. Yet, it is obvious that there can be no case law without litigation. As soon as one deals with any kind of litigation, it is preferable for the parties, for the courts, and for society itself that the parties arrive at some kind of resolution of the matter without requiring the court to go to judgment. The chief mechanism of such resolution is the judicial stipulation and they save taxpayers hundreds of millions of dollars annually. They are therefore highly favored by the courts and when crafted by attorneys on all sides should be almost invulnerable to attack. Indeed, absent notice of lack of authority to the other side, it is conclusively presumed that an attorney’s stipulation binds his or her client. Koval v. Simon Telelect, Inc, 693 N.E.2d 1299 (Supreme Indiana 1998), but see, Luethke v. Suhr, 650 N.W.2d 220 (Supreme Nebraska, 2002).
1029 Sixth LLC v. Riniv Corp.: Strict enforcement of stipulations.
However the attack can be somewhat subtle. The parties may continue to avow that the stipulation binds them while one side seeks to be excused from a de minimis departure from the obligations undertaken in the stipulation. Courts will generally allow such departures unless the stipulation by its own terms forbids such. 1029 Sixth LLC v. Riniv Corp., 32 HCR 340A, 9 AD3d 142, 777 NYS2d 122, HCR Serial #00014343, TLC Stipulations 22, TLC Serial #0281 (NY 1st Dept. 2004).
379 Madison Avenue, Inc., v. The Stuyvesant Company: Attorneys’ fees clause in favor of landlord enforceable.
Sykes v. RFD Third Ave. I Assocs., LLC: Stipulated victory sufficient predicate for an award of attorneys’ fees.
It is now generally agreed that a lease clause calling for the tenant to pay for the landlord’s attorneys’ fees in the event of litigation is fully enforceable. 379 Madison Avenue, Inc., v. The Stuyvesant Company, 242 A.D. 567, 275 N.Y.S. 953 (NY 1st Dept. 1934), affirmed on opinion below 268 N.Y. 576, 198 N.E. 412 (NY Court of Appeals 1935).
In those jurisdictions which allow victory in the litigation in chief to be the basis of an award of attorneys’ fees when authorized by the lease, there is some controversy as to whether a “win” achieved by means of a stipulation is enough of a win to justify the attorneys’ fees award. Some hold that such a doctrine discourages parties from stipulating to their own defeat, but others hold that it encourages the winner to win at the bargaining table, knowing that the win will not be diminished by it having been achieved through a stipulation. The dominant view is that a stipulated win will, in fact, support an award of attorneys’ fees. Sykes v. RFD Third Ave. I Assocs., LLC, 35 HCR 361A, 39 AD3d 279, 833 NYS2d 76, HCR Serial #00016522, TLC Attorneys’ Fees 66, TLC Serial #0428 (NY 1st Dept. 2007).
F & F Restaurant Corp. v. Wells, Goode & Benefit, Ltd.: Subletting and assignment, landlord bound not to withhold consent without a valid reason.
It is enough on this point to note that Neuman as equitable owner had the right to withhold consent only if he had a reasonable ground for doing so and that the existence of a reasonable ground must be proved by Neuman’s successor, the present owner, and will not be presumed. For like reason, the assignment from Margin Call to plaintiff must be given effect unless the landlord can establish a reasonable ground for withholding consent.
Echo Consulting Services, Inc. v. North Conway Bank: tenant’s entitlement to declare itself sufficiently deprived of essential use of premises to abandon them.
Barash v. Pennsylvania Terminal Real Estate Corporation: definition and distinctions of actual and constructive eviction.
At the other end of the spectrum from stipulations resolving litigation is self-help. This comes in two principal species. The first, actual eviction, is where the landlord without benefit of judicial process deprives the tenant of actual possession of the premises in whole or in part – by means of physically depriving the tenant of some or all of the leased space. The second, constructive eviction, is where the tenant, also without benefit of judicial process, deems itself to have been deprived of the use of the premises and abandons them in whole or in part. If the tenant only abandons a portion of the used space, deeming it unusable, this is a “partial constructive eviction.” In sum, actual eviction is a self-help remedy employed by landlords; constructive eviction is a self-help remedy employed by tenants. Barash v. Pennsylvania Terminal Real Estate Corporation states, “To be an eviction, constructive or actual, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.” 41 From this point of view, the action is in either case regarded as being taken by the landlord, but this is a faulty perception. It is the inaction of the landlord and the action of the tenant that makes one realize a constructive eviction has taken place. It is the opposite for an actual eviction.
Eastside Exhibition Corp. v. 210 E. 86th St. Corp.: Landlord’s entitlement to rent in spite of deminimis permanent deprivation of leased space.
den access. At common law, such deprivation of the 20 square feet would deprive the landlord of all entitlement to rent until the premises a rerestored to their previous condition.In Eastside Exhibition, however, the court ruled that a de minimis deprivation will not forfeit the landlord’s entitlement to rent.
Note the important distinction here: actual eviction, whether it isactual total eviction or actual partial eviction, entitles the tenant to total forgiveness of the rent. East side holds that where the actual partial eviction is de minimis, the tenant is not entitled to total forgiveness, but only an assessment of the damages actually sustained.44Constructiveeviction, on the other hand is where the tenant has deemed the premises to have become so unusable that the tenant has abandoned them in whole or in part. Under constructive eviction, the amount of forgiveness of rent the ten-ant receives varies with the amount of space the tenant has abandoned.Those watching the development of commercial leasing law are keeping a careful eye focused on how and whether Eastside’s doctrine spreads across the state. That it violates ma’at cannot be denied.
As we saw with our analysis of Holy Properties,the principle of ma’at is critical in the study of commercial leasing law. Yet, as we see from East-side Exhibition,common law doctrines do, from time to time, get thrown out or severely modified.There are fields of law in which one can rely on ancient doctrine sand not worry about their changing much. One can keep practicing law at the end of one’s career essentially the way one did at the beginning. But commercial leasing practitioners avoid land mines. Other cases assist in understanding the essence and important rules of commercial leasing. Other cases are simply core elements of the always developing common law of commercial leasing.Although many other cases could and should be added to this body of law, these cases will give the reader enough weapons and shields to enter the friendly battle of commercial lease representation. The practitioner who does not master at least the cases discussed in this article and keep an eye open for further developments works at peril.

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Planning what fish and inverts are going to go in an aquarium is always daunting: how many fish, what species for your aquarium size, what fish will play nice with one another. So many questions that have to be addressed to ensure success of your tank.
The Fluval Spec line of aquariums leads to some additional complications and considerations when choosing fish and inverts. I’ll discuss some of these challenges and give some broad suggestions on what fish and inverts will work for your Spec III and Spec V aquariums.
People often think that the very large aquariums of 55, 75, or 100 gallons are the complex variety in the hobby. In ways, they are – the larger tanks and associated equipment does cost more initially. Maintenance can be more difficult because of the size and large volume of water involved. However, in one critical aspect the larger aquariums are easier to care for: the larger volume of water makes them more stable and offers more options for stocking. By more stable, I mean that changes to the water tend to happen slowly because the volume dilutes any changes. Put a few drops of contaminates in a large aquarium and it may be so diluted to allow the occupants to survive. The same drops of contaminates in a Nano aquarium – no such luck. The drops constitute a much larger percentage of the total volume and the concentration is much higher.
Both the three gallon Spec III and the 5 gallon Spec V aquariums are considered nano aquariums. Even though they are small, simple, and inexpensive, they still have challenges. Breeds of fish that are sensitive to water quality will demand that the regular maintenance be completed religiously; neglect will cause the water parameters to drift quickly as the small water volume offers little margin for error.
Nano aquariums are challenging because the small water volume can’t support a high bioload, meaning the numbers of fish and inverts will be limited. Beyond that, every fish has basic needs for the minimum space for swimming and living to remain healthy. This will limit the number of fish you can add to a nano aquarium, such as the Fluval Spec the Spec.
There is a rule of thumb that says you can stock an aquarium with 1″ of fish per gallon of water. This is a very loose approximation and many people disagree with it, saying it can be conservative or liberal depending on the specifics. However, it does give you an idea of how limited we are with the Spec aquariums. The five gallon V would be limited to a total of 5″ of fish; the 3 gallon III limited to a total of 3″ of fish.
The smaller Spec III has a further complication with its layout. Fish typically live and swim horizontally. The Spec III is arranged as a cube with very little horizontal space to allow swimming. Even if you select a breed and quantity of fish suitable for the volume, active varieties might not thrive because the space is too cramped.
Don’t despair; if you are willing to work within the limitations and embrace the challenges, there are many fish and invert options available to stock a Spec aquarium.
Certain breeds of fish do well as ‘loner’ fish in nano aquariums. We often transfer our emotions onto animals and think a single fish in a tank will be lonely, but this is not the case for some breeds.
Betta Fish (Betta Splendens): This fish is also referred to as Siamese Fighting Fish. The name is accurately descriptive; they were bred to be fighting fish and for this reason, they thrive alone. The water volume of the Spec V is ideal to house a single Betta. The smaller Spec III is not ideal, but will work with care. Spec Aquariums may require a few modifications to house the long finned Betta.
Scarlet badis (Dario dario): Multiple males of this species is a no-no for a nano tank as they become very territorial. However, they do fine with a single male by himself, or a single male with one or two females. The size is right; males usually stay at 20mm (0.78 inches) or less. I don’t have direct experience but understand Scarlet Badis’ are sometimes finicky eaters.
Dwarf Puffer (also known as the Pea, Pygmy, Indian Dwarf, and Malabar Puffer): This little fish is perfectly happy alone, but needs at least the five gallons of the Spec V. Don’t plan on any shrimp surviving with this fish.
Some of the smallest varieties of fish for freshwater aquariums are often schooling fish, those that need to live in groups to survive and thrive. This makes for a bit of a conflict as some are the perfect size (no larger than 25mm (1″)) but the effect of being provided in quantities large enough to maintain security makes one pause and consider.
The key to having a schooling variety thrive in a Spec V is getting a specific range of fish quantity; high enough to feel comfortable, but low enough to not cramp and cause water quality issues. I feel this number is in the range of 6 to 8 fish. For the very small varieties (maximum length of 19mm or 0.75″), 8 to 10 fish may work.
The Spec V’s layout, being long, allows the school room to swim. The smaller Spec III, because of the compressed footprint, does not allow this as well. Additionally, three gallons is probably not enough volume to support 6 to 8 of any fish. It is for this reason that I would personally discourage schooling varieties from being housed in the Spec III.
Green Neon Tetra (Paracheirodon simulans): This is at the top of the list as a group of 7 are currently occupying our Spec V. They have been there for 11 months now and are perfectly healthy in this environment. They are similar to the common Neon Tetra (Paracheirodon innesi) and the Cardinal Tetra (Paracheirodon axelrodi), but the Green Neon Tetra is a bit smaller than those two (topping out at around 25mm (1″) max) and are thus better suited for a nano aquarium. They can be differentiated by the blue stripe that extends end to end. The Green Neon is more rare than standard Neons or Cardinal Neons so it may take a more reputable fish store to obtain them. Some people have the opinion that all neon tetra varieties are too active to be happy in a 5 gallon nano, so proceed with caution.
Ember Tetra (Hyphessobrycon amandae): This was a close runner up. The size is right at around 25mm / 1″ max. They are a very beautiful golden color.
Chilli Rasbora (Boraras brigittae): Also known as the Mosquito Rasbora. This is an excellent fish from a size standpoint. They max out at around 18mm (0.7 in). Their small size would allow up to 10 in a Spec V. They have a beautiful red coloration. They are not impressive alone, but together in a group they become quite a spectacle.
Dwarf Rasbora (Boraras maculatus): Also known as the Spotted Rasbora. Small, with a maximum length of around 25mm (1″). Somewhat thin fish; not flashy. Should survive well in a group of around 6 to 10. I have mentioned 2 of the 6 in the Boraras family. All will be suitable in size to investigate for a Spec V.
Emerald Dwarf Rasbora (Microrasbora erythromicron): This is a beautiful fish. It is pale with red/orange vertical stripes and a spot near the tail. They have a maximum size of around 20mm (0.78″). While not technically a schooling fish, they are happiest in groups. I would suggest 6 for a Spec V. They are known as a shy fish and can be temperamental as far a water quality, so proceed with caution.
At this point, you may be distraught over the limits in fish selection for nano aquariums. Have heart, there are options other than fish that can add greatly to your entertainment and enjoyment.
You should even consider having an invert only Spec, especially if you are looking at the smaller Spec III. Don’t discount how much fun shrimp and snails can be to raise and observe. Honestly, I spend more time studying and enjoying the Red Cherry Shrimp in our tank than I do the fish.
The added benefit of these critters is that they do help to clean some of the algae off surfaces. At the same time, however, they are pooping quite a bit, so I think the end effect is a wash.
Red Cherry Shrimp (Neocaridina heteropoda): RCS are the most common showcase shrimp for freshwater aquariums. They are small enough to be housed comfortably in a Spec V. Be warned that if you provided anything close to adequate water conditions, they will breed. You can start with as few as you want. I started with about 6 and now have, umm, many more than that.
Crystal Red Shrimp (Caridina cantonensis sp. “Red”): CRS are more exotic in appearance than Red Cherry Shrimp. They are white with red accent coloration. They tend to be more difficult to keep and breed compared to RCS. They do not interbreed with RCS so the two can be kept in the same tank.
Amano Shrimp (Caridina multidentata): This is a larger variety of shrimp, reaching up to 50mm (2″) in length. They do not breed in freshwater. A Spec can probably handle a few of these; just make sure to supplement with proper food.
Nerite Snails (Neritina natalensis): The nerite snail is a very entertaining addition to the nano aquarium. They can achieve a size of around 25mm (1″) in diameter. They come in varieties based on shell color or pattern: olive, tiger, zebra. This snail will not breed in freshwater, so you don’t have to worry about them multiplying like pond snails. They can, however, lay small white eggs that don’t hatch. Some people consider these eggs to be a nuisance. I would not put more than one nerite snail into a Spec aquarium.
Horned Nerite Snail (Clithon corona): This variety is an even better fit for a nano aquarium because it is smaller than a regular nerite snail. They get their name from small spike shapes on their shells. The horned nerite snail will grow to around 10mm (0.4″). Like the regular Nerite, it will only breed in brackish water. They can be somewhat hard to find in shops, but it is worth it to search as the size is perfect for a Spec.
I’ve given some suggestions for fish and inverts, but you need to fully investigate the needs of any critter you decide to put in your tank. Take into account their feeding requirements and preferred water conditions (including ph, temperature, hardness). If you mix multiple types of fish and/or fish with inverts, carefully consider if they will live peaceably with each other. Shrimp specifically are very prone to being eaten by even small fish.
If you have read this far hoping for advice on keeping a goldfish in your Spec, the only thing I can offer is . . . don’t. They are simply too big and produce way too much waste for a nano aquarium.
I hope this information helps. Happy Planning!
This entry was posted in Aquarium Tips, Spec Mods and tagged fish options, five gallon, how to stock, nano aquarium, Spec 3, spec 5, spec iii, spec v, what fish. Bookmark the permalink.
Hey, I like your whole website and its really helpful for setting up my Spec V. I was wondering if you’ve considered pygmy cory or maybe marble hatchetfish? That was you’re reaching different water levels.
I see what you are trying to do with fish on different levels; the problem is that both of these species are best kept in groups.
For the Pygmy Corys, you would need 5 or more for them to be comfortable. That takes up a lot of bio-load right there and puts you at the upper end of what you want in a Spec V, just from the Pygmy Cories.
Same thing for the Hatchetfish, best in groups of 5 to 6 or more. They are jumpers, so you would probably need to cover the lid opening with mesh of some sort.
Trying to keep a group of both fish types will be too much for a Spec V. The cories by themselves may work, but I think the volume and shape of the Spec V is still on the small side just for them.
Just my opinion – keep researching and make your best decision. Thanks for the question!
Hello, i was wondering what kind of driftwood did you use for your tank? I would really like to know the name of it and any suggestions where i could purchase it. Thank you!
The driftwood in my tank is Manzanita and was obtained from Tom Barr.
He sold me a box of random sticks suitable for a nano aquarium – something like $40 shipped. Contact him to ask.
Those two breeds of fish should work with shrimp. If you want to breed, I expect the neons will eat some of the babies. So having any shrimp fry survive will depend on having hiding places.
Love all the info you provide for the Spec V tank. I currently have a Betta in a small half-gallon tank (I know) and am wanting to upgrade to the Spec V. I am a total beginner with aquariums. I would like to add more fish and/or inverts, as well as at least one live plant, but have no clue what would be best. Do you have any recommendations? I plan on scouring the rest of your site for more info, as well.
I think you will like the Spec V and I know your Betta will. I’m no expert on Betta fish so you might do your own research on if any other fish will be compatible. Inverts: we have a horned nerite snail that has been great and very entertaining. Shrimp will probably get harassed but I’m not sure. Might be worth trying a ‘ghost’ shrimp.
Plants: I’d hate to even give you suggestions as I don’t know what look you are going for. Search for ‘low-light aquarium’ plants and you should be able to find some options. I bought my plants from a site that has a great section on low light plants.
Cryptocorne do well in my spec V and are a smaller plant.
I was just wondering what is the substrate you are using in your tank?
I believe I have answered that question for myself, I hadn’t seen the part about the substrates under the planted aquarium tab.
Yes, I’m still using Up Aqua Aquasand. It has worked very well.
Love your reviews. Don’t forget to mention Galaxy Rasbora. Also, i was wondering if you have any idea how to improve circulation on these aquarium?
Theres no way to without adding a small seperate filter, if flow rate has dropped try removing any larger particles out of the filter media. Make sure you never wash filter media in anything other than the tank water if you need to!
Have been reading through this site for sometime now and have learned a lot about my spec v that I’ve owned for about 6 months. I’m currently housing 8 emerald dwarf rasboras (actually they’ve determined these variety of fish are “danio’s” and not of the rasbora family after all) which have been with me for about as long as I’ve had the tank and so far have been doing great and are quite healthy. The seller sold them as a group of 7 but gave me 8 incase one died during transport to me from another state (Aquatic Arts who I highly recommend to buy fish and invertebrates from). I also have about 20 fire red sakura shrimp who I also purchased from them and are doing quite well. I’m using the current usa satellite + LED light which is perfect for this tank as it is planted using seachem flourite black sand and the flourish line of nutrients and have had great success. Thanks for all the good advice and will be checking back periodically.
You bet! Sounds like you have a great setup with healthy fish.
I have a rainbow snakehead in mine, im fully aware of the size growing up to 20cm and will move it out at the size of 5”. I think he’s a great pet and gets handfed smelt and bloodworm. Ideally i want a strange unique fish which has plenty of character and lives on its own. Is there any others along the lines of predatory fish i could add in when the snakhead outgrows the tank?
Would a fluval spec V be fitting for 4 guppies and 6 red cherry shrimp???
6 RCS are no problem. I don’t know much about guppies; 4 seems to be a reasonable number in a Spec V.
I currently have 10 green neon tetras in mine and they seem very happy with the heavily planted setting. The one thing is that they seem to prefer when the filter is off because they are much more active and come out into the water column more. I think there is too much turbulence for them and Im thinking about reducing the flow soon. Anyways, I love your site and used it a lot when I was setting up the tank. You should do a post where you put pictures of tanks that people who follow the site have made. I would certainly submit one!
I’d guess from the context of this site and his comment, Scott has a Fluval Spec V aquarium; around 5 gallons.
I really appreciate this blog… tons of useful information on Spec tanks! I picked up a Spec V a few weeks ago, set up and cycled the tank, and after much deliberation decided on a small shoal of Ember Tetras and a few Red Rili shrimp. So far everything is going great. I love the look of this tank and the discreet filter and pump housing (with the heater tucked into the pump compartment) giving it a very clean, uncluttered look. Anyway, thanks for all the info! I spent a lot of time on this page particularly, going over my stocking options again and again while I waited for the tank to cycle.
You are very welcome! Hope the embers work out well for you. We are a bit low on Green Neon’s because some have died. I’m considering Embers for the next go around.
There’s so much you can do with the Spec V. I’ve had mine up and running for three years now and it has housed a variety of small fish from Betta to Dwarf Puffers (yes, there were 4). It currently houses 6 Ember Tetra, 4 Sparkling Gourami (really cool fish!), 2 Pygmy Cory Catfish, 1 Pygmy Loach, 1 Gold Ring Danio, 2 Red Racer Snails and a host of pest snails. None of them grow to be larger than an inch. It is also heavily planted–which helps to oxygenate the water and decrease bio-load. It gets 8 hours of light 5 days a week. I do very little maintenance on this tank…weekly water top off, 25% water change every 3 months (just to clean the sand), filter flush every 6 months.
Very interesting! You certainly have a very streamlined tank if it works with maintenance that low. Good job!
Hi, I was just wondering if it would be possible to keep a betta, a few ghost (or red cherry) shrimp, along with a lone nerite snail in a planted Fluval Spec V?
I think that would be ok. Only reservation is a Betta fish with small shrimp (with shrimp potentially being an entrée). If you give the fish some hiding places it should work out fine.

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