But there are real differences between a mortgage and a deed of trust. See Exhibits for the Arizona statutes regulating each. The mortgage requires a civil action, often too lengthy for the taste of lenders, to foreclose the mortgage. After a trustee sale, there is no right of redemption (except as preempted by Federal law, e.g. IRS lien). ARS 33-811(E) Conversely, after a judicial foreclosure, the judgment debtor or his successor in interest has a six-month redemption period per ARS§1282 (B), but only for properties not abandoned and not agricultural land (in which case the redemption period is 30 days) per ARS§1282(A), and each lienor in order of priority has a five-day redemption period thereafter, if the owner does not redeem. And the Arizona anti-deficiency statute ARS§33-729 for mortgages limits its applicability to only purchase money loans for residential properties of 2.5 acres or less, while the parallel statute for trust deeds in the state of Arizona has no such limitation for purchase money loans.
So even though a mortgage or deed of trust typically involves an indebtedness, it may also secure other obligations.
A mortgage, which becomes a lien against realty upon its recording, may be disposed of in number of ways. Methods include: discharge by the recording of a satisfaction of the mortgage removing the realty from the lien of the mortgage by recording a release; discharge by court order; and, in some limited cases, discharge by a filing by a third party, such as a title insurer, a court-appointed personal representative, or an affidavit executed by an attorney at law or attorney in fact.
A full repayment of a loan secured by a recorded deed to secure debt will itself operate to cancel the underlying encumbrance. Implicit in ARS§33-707 is that once creditor receives full satisfaction, it will record a sufficient release or satisfaction of mortgage or deed of release and reconveyance of the deed of trust.
An open mortgage or deed of trust of record, however, constitutes an apparent lien or encumbrance against real property. So, to clear marketable title [to be defined below] of the property, the parties to a real estate transaction will demand the actual cancellation and release of the prior mortgage of record.
Therefore, an old mortgage/deed of trust affects both the marketability and insurability of the property’s title. A title insurance company that has actual knowledge that an open-of-record mortgage has been properly paid off will insure title without exception to that mortgage since it can prove that the mortgage does not constitute a lien of the real property and therefore that the mortgage also does not impair the marketability of title of the property.
Although there is a common law distinction between a satisfaction and a release, that is, satisfaction of performance of paying off the debt versus release of the lien encumbering the property, Arizona merges the concepts statutorily. So ARS§33-707 et seq. addresses both satisfactions and releases interchangeably to discharge mortgages and deeds of trust. The requirements essentially are:  the property is legally described;  the docket and page or recording number of the underlying encumbrance is recited in the recorded document;  the document contains language that releases the mortgage or deed of trust and revests in the mortgagor or person who executed the deed of trust, or his legal representatives, all title to the property affected by the mortgage or deed of trust; and  the document is duly acknowledged and recorded.
Alternatively, a court order under 33-713 is available to an interested party, so long as the mortgagee meets intrinsic tests of not being a county resident, or is deceased without a state-appointed personal representative for the estate.
The intent of the parties in creating the legal description is of prime importance in determining what the words mean. The intent can be determined by the words in the instrument, by words in other instruments from a common grantor, by maps filed by the common grantor, by the actions of the grantor and grantee after the delivery of the deed, by the economic reasonableness of the transaction viewed from both perspectives with all reasonable interpretations of the words in the deed and from current testimony of the parties as to intent, so long as such testimony does not contradict either the actual language used or attempt to give lie to the conduct of the parties after the delivery of the deed.
Description errors arise from a multitude of sources, typically bad deed descriptions; inconsistent deed descriptions; conflicting surveys; corners marked inconsistently or misidentified; etc.
2.1.1 Resolving Repeated Typographical and ClericalErrors. Either the attorney or title company, upon general agreement as to the correct and incorrect legal description property line in question, may correct the clerical error in the legal description and attach the corrected version to the new conveyance deed or loan documents. As a matter of good practice, the attorney should notate the corrected call(s) in the newly prepared legal description so as to provide future title examiners with an explanation for the corrected legal description. If a party conveying the property objects to this approach (particularly for a seller providing a warranty of title), then the grantor should execute two conveyance deeds to the grantee: a warranty deed using the historic legal description and a quitclaim deed using the corrected legal description with an explanation of the correction as suggested above. The attorney for the grantee also should advise their client to obtain title insurance based upon the corrected legal description.
2.1.2 Resolving Discrepancies between Prior Deed and New Survey. It is not uncommon for a newly prepared survey to conflict with the historical legal description of the subject property. The tendency is to rely on the current surveyor’s opinion—and the adequacy of his/her professional liability insurance—but prudence dictates that the real estate attorney understands the discrepancy, hopefully a minor one. Examination of the legal description of the chain of title dating back to the first subdivision of the original parcel, as well as the legal descriptions of abutting properties, should help ascertain the correct legal description. Again, the grantor should execute two conveyance deeds to the grantee: a warranty deed using the historic legal description and a quitclaim deed using the survey legal description. Additionally, the grantee should obtain a title insurance policy that includes a “Same as Survey Endorsement.” Further, a more conclusive remedy would be for the parties and the affected neighboring owner(s) to execute a boundary line agreement based upon the survey legal description.
2.1.3 Resolving Discovered Gaps. Strips and Gores.Discovering gaps, strips and gores in contiguous parcels requires careful evaluation by the attorneys involved in the transaction to ascertain the intent of the parties in the past and to consider the time that has elapsed since the gaps, strips and gores were first created in the chain of title. In a perfect world, one would ask the parties whose interests remain outstanding in the chain of title (including their heirs and devisees) to simply quitclaim to the new grantee these affected areas. In the author’s experience, rarely are such parties identifiable and, even if located, cooperative. Moreover, the parties to the transaction, including the attorney’s own client, may be leery to engage in such conversations with parties from the past. Generally, the more time that has elapsed since the creation of the gap, strip or gore, and the more remote that possible claimants to the disputed area will come forward, the greater likelihood that marketable title can be obtained through the opinion of the attorney certifying title and the recommended use of a Contiguity Endorsement to be issued with the underlying title insurance policy. As with the above examples, and even with the availability of a Contiguity Endorsement, the grantor should expect to provide two conveyance deeds to the grantee: a warranty deed using the historic legal descriptions of the parcels and a quitclaim deed using a contiguous legal description of the intended tract of land without such gaps, strips and gores (often from a survey).
Many of the legal description and boundary disputes of property, described above and below, emanate from or may be resolved by a correct survey. The real estate attorney should understand both the components that a survey should include, as well as the parcel of real estate that it is legally describing. The issues include the purpose of the survey, to whom the survey is certified, which parcel[s] are being described, reliability of monuments, etc. That said, a lawyer should never attempt to be his own expert, the risk of conflict is too great and the lawyer is by definition incompetent to give an expert opinion in any matter in which he represents a party.
making a thorough and diligent search of the public records made for all matters that affect the boundary line(s) in question.
locating any existing surveys of the premises in question and all adjoining parcels of land, and upon consultation with his client obtaining a current survey correctly depicting the boundary lines of his client’s property from a surveyor capable of giving expert testimony in any litigation over the boundary line.
obtaining an expert determination of the respective rights of the parties in dispute from a reliable independent expert witness.
In any boundary line dispute, there is a problem of conflicting claims of title to a portion of the client’s real property. These claims can range from a dispute over a three-inch strip on the outside of a historic fence line, to improvements built over the property line (new construction), to improvements built beyond the property line (seventy-year old building), to the absence of frontage on a public right of way. The dispute may involve negligible monetary impact to the value on the property, but then the discrepancy may not be “minor” in nature, e.g., it materially affects the existing or intended use of the property by the grantee. If a negotiated solution is not possible, be prepared to litigate the boundary line in question in a quiet title action. Without agreement of the adjoining parcel owners, a title insurance company may not be willing to insure over the discrepancy, for example, where the neighboring owner may have installed a fence, landscaping or other improvements in the disputed area based upon their title to the property (as opposed to a blatant act of trespass or encroachment), all of which would be taken by the title insurer as an exception to the title insurance policy.
The preferred approach to efficiently, timely and effectively resolve the cloud on title, therefore, would be for the neighboring owners to execute a mutually agreeable and recorded boundary line agreement.
A very common problem in land transactions, whether with conveyances or in real estate lending, is the discovery of tax liens, mechanic’s liens, judgment liens and other types of liens. Liens are claims against a specific real property. In each instance, the attorney for the party relying on providing or receiving marketable title must ascertain first whether or not the specific lien secures an obligation which remains unpaid. Then, once confirming that payment previously or concurrently has been made or, by operation of state law the lien has expired, the attorney will work with the parties to remove the lien of record or otherwise obtain title insurance that insures the property interest without exception for the subject lien.
Provided below are the most common liens that a real estate transaction attorney will encounter in their daily practice — judgment liens, tax liens, mechanics’ liens, and property owner association liens. ARS Title 33 contains a list of liens recognized by Arizona.
Moreover, care should be taken to ensure that a bona fide purchaser or lender for a particular parcel of property has received no notice of the judgment prior to the conveyance of title and prior to the recording of the judgment lien. In such an event, the bona fide purchaser and lender may become subject to the judgment lien even though the lien was not first in priority.
3.2.1 Clearing Federal Tax Liens. Generally, federal tax liens must be placed on the property within ten (10) years or else it becomes unenforceable by operation of law. I.R.C at 26 USC §6502. The period runs from when the tax is assessed and ends either 1) when the tax is fully paid, or 2) “becomes unenforceable by operation of law”, otherwise known as the “Tax Lien Statute of Limitations.” Internal Revenue Code (I.R.C) at 26 USC §6322. Most federal tax liens are addressed in the Federal Tax Lien Act of 1966 as well as 26 U.S.C.A. § 6321 et. seq. Such liens may arise for unpaid income taxes, estate taxes, gift taxes or any other tax due and payable to the United States government. In general, federal tax liens that encumber real property will be found by the attorney or title examiner in the county recorder’s office.
As a general proposition, a federal tax lien is governed by the common law concept of “first in time is first of right”. See United States v. New Britain, 347 U.S. (1954). In other words, federal tax liens do not magically gain priority over all prior liens. Moreover, lender security deeds will be afforded priority over the federal tax lien provided that the loan was made at least 46 days prior to the date of recording of the federal tax lien and the lender had no knowledge of the federal tax lien, which rule is particularly helpful in jurisdictions with a long gap period in the property records. See 26 U.S.C.A. § 6323(b)(2). The same general rule applies to subsequent lender advances made under a construction loan. See 26 U.S.C.A. § 6323(b)(3).
With the exception of estate tax liens (addressed below), most all other federal tax liens will become dormant 10 years after the tax assessment becomes due unless the federal government forecloses upon its lien. See 26 U.S.C.A. § 6323, and 26 U.S.C.A. § 6502 (which provides a ten year statute of limitations to enforce the tax assessment). As above, the grantee to a real property interest should ensure that the federal tax lien has been paid or bonded prior to closing. Typically, the Internal Revenue Service will issue a “Release of the Notice of Federal Tax Lien” within 30 days of receiving payment for the full amount of the unpaid tax, interest, penalties and the costs to file the release in the general execution docket. 26 U.S.C. §§ 6325(a). The process to repay the federal tax lien is standardized and one simply follows instructions found at www.irs.gov as needed to obtain a payoff amount and instructions on where to send payment.
(a) The taxes, penalties, charges and interest are paid.
(b) Title to the property has finally vested in a purchaser under a tax sale.
(c) A certificate of removal and abatement has been issued pursuant to section 42-18353.
Further, per ARS§42-17153(3), a tax lien is prior and superior to all other liens and encumbrances on the property, except (a) state liens or encumbrances, and (b) other tax liens.
Under ARS§42-1153, the Arizona Department of Revenue may on its own accord release or subordinate a lien. Under ARS§42-1153(E), a certificate by the department to the effect that any property has been released from the lien or that the lien has been subordinated to other liens is conclusive evidence that the property has been released or that the lien has been subordinated as provided in the certificate.
ARS§42-15001 et seq. regulates county ad valorem property taxes in Arizona. Under ARS§42-18055, the county treasurer must record the date of payment and credit the payment to the person or property that is liable for the tax.
A real estate attorney may determine that the property under examination may be entitled to a tax exemption, and therefore is not subject to a tax lien. Arizona Revised Statutes 42-11111 provides in part, “the property of widows, widowers and disabled persons who are residents of this state is exempt from taxation to the extent allowed by article IX, sections 2, 2.1, 2.2 and 2.3, Constitution of Arizona, and subject to the conditions and limitations prescribed by this section.” Also, the state’s Senior Homeownership Protection program is designed to freeze the full cash value of a primary residence owned by seniors based on income and age. More information is available from the County Assessor websites.
ARS§42-18101 et seq. regulates the vibrant investment business of tax lien certificates, whereby investors buy county tax lien certificates. Arizona rate of return is 16% on Tax Lien Certificates. Property owners have a three-year period to repay the delinquent taxes and penalties for a certificate bought at a tax lien sale, which occurs annually in February. Any time after the redemption period, but not exceeding 10 years, the investor may initiate foreclosure with the superior court in the county in which the property is located.
Mechanic’s and materialman’s liens are creatures of state law, per ARS Title 33, Article 6, and there exists a large body of case law for which the uninitiated should be wary. In summary, contractors, subcontractors, suppliers, and even professionals such as engineers, architects, surveyors and others who provide labor and materials towards the improvement of real property will be entitled under state law to file a statutory lien against the real property for non-payment of their services. While there are many technical elements to the statute and as set forth in the substantial body of case law that has followed, for the real estate transactional attorney in a pending conveyance or loan financing matter, there are several restrictions on a contractor’s ability to place a lien on the property.
To start the process of obtaining a lien against a project or even to obtain a claim to a bond, the subcontractor or supplier must issue a Preliminary Twenty-Day Notice (sometimes referred to as a “pre-lien”). ARS§33-992 The Preliminary Twenty-Day Notice must be sent to the owner, the lender (if any), the general contractor, and if the issuer is a supplier, to the subcontractor. The Preliminary Twenty-Day Notice lists the amount that the subcontractor or supplier anticipates the work or supplies will cost for a particular job.The Preliminary Twenty-Day Notice is effective to protect payment of any labor or materials that were used within twenty day prior to the date of the Preliminary Twenty-Day Notice. A Preliminary Twenty-Day Notice is not a lien. It is not recorded with the recorder’s office where the project is located and is not subject to any liability for its issuance.
The contractor must have been duly licensed when providing services. Material suppliers and equipment rental companies, however, do not need a contractor’s license.
If suit is filed in the name of an entity, such as an LLC or corporation, the contractor’s or materialman’s legal entity must be in good standing with the Arizona Corporation Commission in order to file suit.
If the subcontractor and supplier have been paid on a job, there is no reason to perfect a lien as the lien amount has already been paid. If the subcontractor and supplier have not been paid, they must file a “Notice and Claim of Lien” with the appropriate county recorder’s office within 120 days after completion of the project or if a Notice of Completion of the project has been recorded, the supplier or subcontractor only has 60 days after recordation of the Notice of Completion to record a Notice and Claim of Lien. ARS§33-997 Once a Notice and Claim of Lien has been properly recorded and served, the lienholder has only six months in which to enforce his, her or its lien rights through foreclosure. ARS§33-998 There are many definitions of “completion” for a project so at the time an account becomes past due and there are potentially lien or bond rights, it is prudent to contact an attorney to determine when a lien or bond claim must be asserted so that those rights are not lost. If the contractor misses this deadline, the lien automatically expires and should not appear as an encumbrance against title. All mechanics’ liens have equal priority with one another, regardless of the date they are recorded, so foreclosing on the lien is time-sensitive.
Lawyering skills are essential in removing liens as clouds on title, for, contrary to the typical expectations of the lay public, the junior liens are not removed once the senior lien is paid off. Liens remain until they are released. And liens on real estate can be released, assuming the judgment creditor or taxing authority agree, without payment in full. More time and effort than ever before is spent negotiating with junior lien holders because the property is not worth enough money to pay off lien holders in full.
In any event, the attorney should contact the lienholder shown in the public lien records, confirm the applicable payment amount (including interest), and make the applicable payment (and retain evidence of such payment). Thereafter, the lienholder is required by law to cancel the lien and recording the release of the cancelled lien with the clerk of the superior court with whom the lien was originally filed. See, e.g., ARS§42-18152. As a practical matter, the attorney should coordinate the lien release as between the two parties and not rely upon the lienor to do so.
Title 33 of Arizona Revised Statutes, Chapter 6, Article 2 contains statutes regulating foreclosures, including several alternative methods of satisfying mortgages of record.
The real estate attorney cannot assume that a foreclosure is going to eliminate all the title problems that exist on a property. Years ago, there was a general assumption that a “foreclosed title” was a pretty clean title; that is no longer the case. Prior unreleased deeds of trust, unpaid taxes, sewer liens, subdivision liens, IRS liens, and other problems, crop up frequently.
It is likely that many lawyers in these times will consult with a client who wants to buy a property at foreclosure or a foreclosed property from a bank or servicing company. There are a few important concerns of which to make certain the client is aware. First, a title should be run on the property to determine if any liens or matters exist that would not be extinguished by the sale. Sewer lines, IRS liens, (although technically, a junior IRS lien would be extinguished assuming proper notice was given, 26 USC 7425, the IRS nonetheless has 120 days from the date of sale to redeem the property from sale.) c. With regard to purchasing a previously foreclosed property, keep in mind that the bank/seller will want to convey title by a special warranty deed or, even more commonly, by quitclaim deed. Check with the title insurer if there is less title policy coverage.
Arizona has a mishmash of statutes which generally affirm the common law theory concerning liens which commonly is known as “first in time is first of right.” But there are exceptions, such as child support, HOA assessments, etc. Accordingly, with respect to a foreclosure of a secured real estate interest, such as a deed to secure debt, the party pursuing foreclosure should examine title and evaluate which property interests may be superior to their own and which are subordinate. In most instances, both federal and state ad valorem tax liens will provide priority issues for the real estate attorney regardless of the date each was recorded.
5.1 What Constitutes a Title Defect?
As counsel for the property owner or tenant during acquisition, you may offer to assist working with the seller’s/landlord’s counsel or the title company to cure title. Moreover, while counsel to the buyer/tenant, you are in the best position then to avoid having to cure title defects which later become apparent but which earlier arose. In addition, having advised the client to obtaining proper title insurance, while not averting title defects, balm the resulting damages resulting from those title defects.
While the title insurance commitment and title insurance policy forms are “standardized” by the ALTA, there are still significant differences in how title commitment forms are formatted and how discovered title defects are presented.
The real estate attorney is well-advised to review with the title office of the grantee’s title insurer what title endorsements should and may be obtained.
When there are conflicting claims to real property or to an interest in real property (such as an easement) a lawsuit can be brought to obtain a judicial declaration of the ownership and interests in the property. In Arizona, this is known as a quiet title action. A quiet tile action is a lawsuit. Attorney’s fees can be awarded to the person seeking to quiet title, pursuant to an Arizona statute, if the defendant is given a proper opportunity to acknowledge that the defendant has no interest in the property and if the defendant fails to do so within a specific time period.


The case is here on certiorari. 273 U. S. 685, 47 S. Ct. 244, 71 L. Ed. —.
Other decisions support the petitioner's contention that a plea of guilty withdrawn by leave of court is not admissible on the trial of the issue arising on the substituted plea of not guilty. Heim v. United States, 47 App. D. C. 485, L. R. A. 1918E, 87; State v. Meyers, 99 Mo. 107, 119, 12 S. W. 516; People v. Ryan, 82 Cal. 617, 23 P. 121; Heath v. State (Okl. Cr. App.) 214 P. 1091. And see White v. State, 51 Ga. 286, 289; Green v. State, 40 Fla. 474, 478, 24 So. 537. We think that contention is sound. A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. United States v. Bayaud (C. C.) 23 F. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. Commonwealth v. Crapo, 212 Mass. 209, 98 N. E. 702. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593; State v. Maresca, 85 Conn. 509, 83 A. 635; State v. Nicholas, 46 Mont. 470, 472, 128 P. 543; State v. Stephens, 71 Mo. 535; People v. McCrory, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720, 37 So. 619; Bishop's New Criminal Procedure, § 747.
The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. It subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. Heim v. United States, supra, 493. The conflict was not avoided by the court's charge. Giving to the withdrawn plea any weight is in principle quite as inconsistent with the prior order as it would be to hold the plea conclusive. Under the charge, if the plea was found not improperly obtained, the jury was required to give it weight unless petitioner was shown to be innocent. And, if admissible at all, such plea inevitably must be so considered. As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. Its introduction may have turned the scale against him. 'The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.' White v. State, supra, 289. It is beside the mark to say, as observed by the Circuit Court of Appeals, that petitioner knew better than any one whether or not he was guilty and that under the evidence a plea of guilty was a reasonable thing. These suggestions might bear upon the weight of admissible evidence but they have no realtion to the admissibility of a withdrawn plea.


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Kotzwinkle, William. Walter the Farting Dog. Berkeley. Frog, Ltd. 2001. Octavo. Hard cover. Reprint. Illustrated in black, white and color by Audrey Colman. Fine copy in fine dust jacket (in mylar).
Kotzwinkle, William. Walter the Farting Dog. Photo available. Berkeley. Frog, Ltd. 2001. Octavo. Hard cover. Reprint. Illustrated in black, white and color by Audrey Colman. Fine copy in fine dust jacket (in mylar).
Kraus, Joanna. Tall Boy's Journey. Minneapolis. Carolrhoda. 1992. Octavo. Soft cover. First edition. Illustrated in black, white and color by Karen Ritz. Fine copy.
Kraus, Robert. Noel the Coward. Inscribed with drawing by the illustrator. New York. Simon and Schuster. 1977. 4to. Hard cover. First edition. Illustrated in black, white and color by Jose Aruego. Inscribed by the illustrator. With large drawing. Fine copy in fine dust jacket (in mylar).
Kroll, Steven. Big Jeremy. New York. Holiday House. 1989. Octavo. Hardcover. First edition. Illustrated in color and black & white by Donald Carrick. Fine copy (owner inscription on end paper) in fine dust jacket (in mylar).
Kroll, Steven. Mary McLean and the St. Patricks Day Parade. New York. Scholastic. 1991. 4to. Hardcover. First edition. Illustrated in color and black & white by Michael Doorling. Fine copy in fine dust jacket (in mylar).
Kroll, Virginia. Africa. Brothers and Sisters. Photo available. New York. Four Winds. 1993. Octavo. Hard cover. First edition. Illustrated in black, white and color by Vanessa French. Fine copy in fine dust jacket (in mylar).
Kunlster, James Howard. Aladdin and the Magic Lamp. New York. Rabbit Ears. 1996. Octavo. Decorated hard cover. First edition. Illustrated in color and black & white by Greg Couch. Fine copy.
Kurodawa, Mitsuhiro. The Great Big Book of Dinosaurs. Wilton. Wishing Well. 1987. 4to. Decorated hard cover. First edition. Illustrated in color and black & white. Fine copy.
L'Engle, Madeleine. A Wind in the Door. New York. Farrar, Straus and Giroux. 1983. Octavo. Soft cover. Reprint. Fine copy.
Laden, Nina. Roberto. The Insect Architect. San Francisco. Chronicle. 2000. Octavo. Hardcover. Illustrated in color and black & white. Fine copy (owner inscription on end paper) in fine dust jacket (in mylar).
Lager, Claude. Jeanette and Josie. New York. Viking Press. 1989. Octavo. Hardcover. First American edition. Illustrated in color and black & white by Claude K. Dubois. Fine copy (owner inscription) in fine dust jacket (in mylar).
Lakin, Patricia. The Palace of Stars. New York. Tambourine Books. 1993. 4to. Hard cover. First edition. Illustrated in black, white and color by Kimberly Bulcken Root. Fine copy in fine dust jacket (in mylar).

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Traditionally, trademarks and trade dress were considered different rights with different rules. Trademarks were discrete symbols of source; trade dress referenced the overall look of a product’s packaging, later extended to the overall look of product design. Gradually, the distinction between the two began to fade and became of less importance.
The Supreme Court’s reading of the Lanham Act confirms that, under the Lanham Act, “trade dress” is merely one type of “trademark.” In Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 209-10 (2000), the Court noted that a trademark is defined very broadly to include “any word, name, symbol or device, or any combination thereof [used or intended to be used by a person] to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. § 1127.
This very broad definition lead courts to assume that the Lanham Act protects trade dress – both under Section 2, 15 U.S.C. § 1052 if registered and, even if not registered, under Section 43(a), 15 U.S.C. § 1125(a).
In 1999, Congress amended Section 43(a) specifically with respect to trade dress actions, providing that in a case involving unregistered trade dress “the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.” 15 U.S.C. § 1125(a)(3).
InWal-Mart the Supreme Court created another legal hurdle: for some types of trade dress, called “product design” trade dress, the Court required a showing that the design has acquired distinctiveness or “secondary meaning” in the marketplace, i.e., the relevant public associates the design with a single source. Wal-Mart, 529 U.S. at 216.
In contrast, trademarks (as well as “packaging” trade dress) can still be shown to be “inherently” distinctive – i.e., so distinctive by their very design relative to the goods or services at issue that they are always distinctive and protectable even before they have been promoted and achieved consumer recognition.
Thus, a plaintiff asserting unregistered “trade dress” faces two additional legal hurdles that a “trademark” plaintiff may not.
These additional legal hurdles serve several important policy functions.
As to the latter, however, “consumer predisposition to equate the feature with the source does not exist. Consumers are aware of the reality that, almost invariably, even the most unusual of product designs such as a cocktail shaker shaped like a penguin is intended not to identify the source, but to render the product itself more useful or more appealing.” Wal-Mart, 529 U.S. at 212-13 (citations omitted).
Second, these legal hurdles ensure that there is a free competition in the marketplace unhindered by easy threats of trade dress suits. See Wal-Mart, 529 U.S. at 213.
Third, and related to the second, courts are concerned that extending trade dress rights to product design may turn into a back door to obtaining patent-like (or copyright-like) protection, when the owner of the design has not shown any entitlement to a patent or copyright.
Conversely, a design of a complete product marketed as such to the public is clearly trade dress and requires the showings of secondary meaning and non-functionality. But there can be borderline cases where the determination is not at all obvious.
The Trademark Trial & Appeal Board (“TTAB”) rejected the application under _Wal-Mart_for failure to show secondary meaning. It held, among other things, that the “holes and flaps portion” of the proposed mark constituted “product design” under Wal-Mart because consumers would not ordinarily view that as an indication of source.
Slokevage is significant because the claimed mark was only small portion of the overall design of the product, yet was held to be “product design trade dress” underWal-Mart. What was determinative was not how much of the product design the mark covered but rather consumer perception of the feature as something not generally used to signify source.
Further support for this view can be found in Traffix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), which held that a patented design for outdoor sign stands was a “functional” trade dress and hence unprotectible. The patented feature was the use of dual-springs at the bottom of the sign stand, which keep the road signs standing up despite adverse weather conditions.
Yet the Supreme Court had no trouble in labeling the claimed feature as a “trade dress,” requiring a showing of non-functionality.
In recent opinions, two Courts of Appeals have taken a different approach.
Vuitton, a French design firm, began selling trunks and accessories in the United States in 1893. In 1896 it created the Toile Monogram, featuring entwined LV initials with three motifs: a curved diamond with a four-point star inset, its negative, and a circle with a four-leafed flower inset. Vuitton registered trademarks in this design pattern as well as the individual unique shapes with the United States Patent and Trademark Office. . . .
In October 2002 plaintiff launched a series of handbags featuring “new signature designs” created by Marc Jacobs and Japanese artist Takashi Murakami. The new bags (Murakami handbags) incorporated an update on the fashion house’s famous Toile marks. The fresh design-coined the Louis Vuitton Monogram Multicolore pattern (Multicolore mark)-was a modified version of the Toile marks, printed in 33 bright colors (Murakami colors) on a white or black background.
Vuitton does not seek to protect the overall look of its handbags, that is, its trade dress, but rather the narrower trademark it has established in its colored pattern. We have defined trade dress as “the total image of a good as defined by its overall composition and design, including size, shape, color, texture, and graphics.” Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991).
By way of distinction the Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof” which is used or intended to be used by a person “in commerce ... to identify and distinguish his or her goods ... from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. § 1127 [other citations omitted] Although trade dress and trademarks are both protected by § 43 of the Lanham Act, 15 U.S.C. § 1125(a), the fact that Vuitton seeks only protection of a trademark and not trade dress informs our understanding of the precision of its mark.
Id. at 115-16. The Second Circuit went on to hold that the mark was protectible both because it was “inherently distinctive” and because it was a strong mark which had acquired secondary meaning.
The Second Circuit’s definitional treatment of when a claimed mark is a “trademark” or “trade dress” is problematic. The very definition of a trademark it cited from the Lanham Act was cited by the Supreme Court in Wal-Mart as the statutory basis for protecting trade dress.
If, as the Second Circuit would have it, “trade dress” actually has a definition distinct from the statutory definition of “trademark,” then what is the justification for protecting trade dress as a kind of “trademark” under the statute?
Second, while it is true that “trade dress” has been defined as the “total image” of the good, does that really mean that anything less than the totality of a design is not trade dress but merely a trademark? Vuitton developed, through the help of an artist and a designer, what it believed was a pleasing and eye-catching color pattern to be used on its handbags. As shown in the above illustration, the pattern covered most of the area of the handbag.
True, there were other design elements – for example, the Murakami bags were made in a variety of shapes and sizes, not claimed as part of the mark. A simple reading of Wal-Mart would indicate that what Vuitton sought to protect was indeed “product design” – to be sure, not the whole of the design, but a prominent part thereof.
Third, the Second Circuit’s approach avoids the “consumer disposition” reasoning quoted from the Supreme Court’s Wal-Mart decision above. The Wal-Mart rationale is difficult to square with the notion that a product design, merely because it is only a portion of the total design, does not require a showing of secondary meaning. Query whether the combination mark of designs and color scheme is perceived by consumers to be indicative of source.
Similarly, to the extent part of the reason for requiring secondary meaning is a concern for the preservation of free competition in aesthetic features, one might query whether public policy supports granting one manufacturer a monopoly on a color scheme.
A similar approach similar was taken by the Sixth Circuit in Gibson Guitar Corp. v. Paul Reed Smith Guitars, L.P., 423 F.3d 539 (6th Cir. 2005). There the plaintiff had a registration for the design of a guitar. The parties disputed what, precisely, the registration covered.
The defendant asserted that the registration covered only the two-dimensional outside shape or silhouette of the guitar shape, as shown in the registration drawing. The plaintiff claimed that the mark included the overall three-dimensional shape plus other product features shown in a photograph accompanying the registration application.
In its opinion resolving this question, the Sixth Circuit distinguished trademark from trade dress rights, citing the same definitional difference as the Second Circuit did in Vuitton. 423 F.3d at 546-47. Using this distinction, it concluded that the mark protected by the registration was therefore only the two-dimensional drawing of the overall shape and did not include the guitar’s other features; based on that limitation, it concluded that there was no likelihood of confusion. Id. at 548-52.
The Sixth Circuit’s attempt to distinguish trademark and trade dress rights appears misplaced. Whether something is labeled “trade dress” or a “trademark,” it is still registrable in the Trademark Office. The issue, therefore, was the scope of the plaintiff’s registration, not whether it was a registration for “trade dress” or “trademark.” That issue should have been resolved by looking to the registration and application papers.
Although trade dress, conceptually and legally, is a subset of trademark law, both Congress and the Supreme Court have created legal hurdles for that subset which are not in place for all trademarks. As litigants in marginal cases seek to avoid these hurdles, we believe that the defining line between the two will be an issue that will continue to exercise the federal courts.
A previous version of this post appeared in the New York Law Journal, February 14, 2007.
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Mr. Theodore E. Rein, of Chicago, Ill., for respondent.
The Federal Trade Commission found that Bunte Brothers, candy manufacturers in Illinois, sold products there is what the trade calls 'break and take' packages, which makes the amount the purchaser receives dependent upon chance; and that thereby it was enabled in the Illinois market to compete unfairly with manufacturers outside of Illinois who could not indulge in this device because the Trade Commission has barred 'break and take' packages as an 'unfair method of competition'. Federal Trade Commission Act, § 5(a), 38 Stat. 719, as amended 15 U.S.C. § 45(a), 15 U.S.C.A. § 45(a); Federal Trade Comm. v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Deeming the 'break and take' sales unfair methods of competition under § 5, even though the sales took place wholly within Illinois, the Commission forbade Bunte Brothers further use of the device. The Circuit Court of Appeals set aside the order, 7 Cir., 110 F.2d 412, and we brought the case here because the issue at stake presents an important aspect of the interplay of state and federal authority. 311 U.S. 624, 61 S.Ct. 10, 85 L.Ed. —-.
The scope of § 5 is in controversy.1 That section, the court below held, authorizes the Commission to proceed only against business practices employed in interstate commerce. The Commission urges that its powers are not so restricted, that it may also proscribe unfair methods used in intrastate sales when these result in a handicap to interstate competitors.
While one may not end with the words of a disputed statute, one certainly begins there. 'Unfair methods of competition in commerce' are the concern of § 5, and the Commission is 'directed to prevent persons * * * from using unfair methods of competition in commerce * * *.' The 'commerce' in which these methods are barred is interstate commerce.2 Neither ordinary English speech nor the considered language of legislation would aptly describe the sales by Bunte Brothers of its 'break and take' assortments in Illinois as 'using unfair methods of competition in (interstate) commerce'. When in order to protect interstate commerce Congress has regulated activities which in isolation are merely local, it has normally conveyed its purpose explicitly. See, for example, National Labor Relations Act, §§ 2(7), 9(c), 10(a), 49 Stat. 450, 453, 29 U.S.C. § 152(7), 159(c), 160(a), 29 U.S.C.A. §§ 152(7), 159(c), 160(a); Bituminous Coal Act, § 4-A, 50 Stat. 83, 15 U.S.C. § 834, 15 U.S.C.A. § 834; Federal Employers' Liability Act, § 1, 35 Stat. 65, as amended, 53 Stat. 1404, 45 U.S.C. § 51, 45 U.S.C.A. § 51. To be sure, the construction of every such statute presents a unique problem in which words derive vitality from the aim and nature of the specific legislation. But bearing in mind that in ascertaining the scope of congressional legislation a due regard for a proper adjustment of the local and national interests in our federal scheme must always be in the background, we ought not to find in § 5 radiations beyond the obvious meaning of language unless otherwise the purpose of the Act would be defeated. Minnesota Rate Cases, 230 U.S. 352, 398-412, 33 S.Ct. 729, 739, 745, 57 L.Ed. 1511, 48 L.R.A.,N.S., 1151, Ann.Cas.1916A, 18.
That for a quarter century the Commission has made no such claim is a powerful indication that effective enforcement of the Trade Commission Act is not dependent on control over intrastate transactions.3 Authority actually granted by Congress of course cannot evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred. See Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796. This practical construction of the Act by those entrusted with its administration is reinforced by the Commission's unsuccessful attempt in 1935 to secure from Congress an express grant of authority over transactions 'affecting' commerce in addition to its control of practices in commerce. S.Rep.No. 46, 74th Cong., 1st Sess. These circumstances are all the more significant in that during the whole of the Commission's life the so-called Shreveport doctrine operated in the regulatory field committed to the Interstate Commerce Commission. And it is that doctrine which gives the contention of the Trade Commission its strongest support.
Translation of an implication drawn from the special aspects of one statute to a totally different statute is treacherous business. The Interstate Commerce Act and the Federal Trade Commission Act are widely disparate in their historic settings, in the enterprises which they affect, in the range of control they exercise, and in the relation of these controls to the functioning of the federal system. We need not at this late day rehearse the considerations that led to the Shreveport decision. Houston, E. & W.T. Ry. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341. The nub of it, in the language of Chief Justice Taft, lay in the relation between intrastate and interstate railroad traffic: 'Effective control of the one must embrace some control over the other in view of the blending of both in actual operation. The same rails and the same cars carry both. The same men conduct them.' Railroad Comm. of Wisconsin v. C., B. & Q.R.R., 257 U.S. 563, 588, 42 S.Ct. 232, 237, 66 L.Ed. 371, 22 A.L.R. 1086. And so when the Interstate Commerce Commission found that the intrastate rates of a carrier subject to the Act in effect operated as a discrimination against its interstate traffic, this Court sustained the power of the Commission to bring the two rates into harmonious relation and thereby to terminate the unlawful discrimination. Congress in 1920 revised the Interstate Commerce Act and explicitly confirmed this power of the Commerce Commission. 41 Stat. 484, 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4).
There is the widest difference in practical operation between the control over local traffic intimately connected with interstate traffic and the regulatory authority here asserted. Unlike the relatively precise situation presented by rate discrimination, 'unfair competition' was designed by Congress as a flexible concept with evolving content. Federal Trade Comm. v. R. F. Keppel & Bro., supra, at pages 311, 312 of 291 U.S., at pages 425, 426 of 54 S.Ct., 78 L.Ed. 814. It touches the greatest variety of unrelated activities. The Trade Commission in its Report for 1939 lists as 'unfair competition' thirty-one diverse types of business practices which run the gamut from bribing employees of prospective customers to selling below cost for hindering competition.4 The construction of § 5 urged by the Commission would thus give a federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law. Such control bears no resemblance to the strictly confined authority growing out of railroad rate discrimination. An inroad upon local conditions and local standards of such farreaching import as is involved here, ought to await a clearer mandate from Congress. The problem now before us is very different from that which was recently presented by United States v. F. W. Darby Lumber Co., 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. —-, decided February 3, 1941. We had there to consider the full scope of the constitutional power of Congress under the Commerce Clause in relation to the subject matter of the Fair Labor Standards Act. This case presents the narrow question of what Congress did, not what it could do. And we merely hold that to read 'unfair methods of competition in (interstate) commerce' as though it meant 'unfair methods of competition in any way affecting interstate commerce', requires, in view of all the relevent considerations, much clearer manifestation of intention than Congress has furnished.
In my opinion the judgment should be reversed.
The Commission found that respondent's 'use of chance assortments in the sale and distribution of its candies in Illinois has a direct and powerful burdensome effect upon interstate commerce in candies from other states to the State of Illinois, and gives respondent an undue and unreasonable preference over competitors located in other states.' The validity of that finding and of the Commission's conclusion that respondent's practices constitute unfair methods of competition are not in issue. The only question presented by this petition for certiorari is whether respondent's practices constitute unfair methods of competition 'in commerce' within the meaning of § 5(a) of the Federal Trade Commission Act.
Unfair competition involves not only an offender but also a victim. Here some of the victims of the unfair methods of competition are engaged in interstate commerce. The fact that the acts of the offender are intrastate is immaterial. The purpose of the Act is to protect interstate commerce against specified types of injury. So far as the jurisdiction of the Commission is concerned, it is the existence of that injury to interstate commerce not the interstate or intrastate character of the conduct causing the injury which is important. An unfair method of competition is 'in' interstate commerce not only when it has an interstate origin but also when it has a direct interstate impact. Respondent is 'using' unfair methods of competition 'in' interstate commerce when the direct effect of its conduct is to burden, stifle, or impair that commerce.
Under the Sherman Act, 26 Stat. 209, 15 U.S.C.A. § 1 et seq., a contract or conspiracy may be 'in restraint of trade or commerce among the several States' even though the acts or conduct are intrastate. Swift & Co. v. United States, 196 U.S. 375, 397, 25 S.Ct. 276, 279, 49 L.Ed. 518; United States v. Patten, 226 U.S. 525, 541-543, 33 S.Ct. 141, 144, 145, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; Standard Oil Co. v. United States, 283 U.S. 163, 168, 169, 51 S.Ct. 421, 423, 75 L.Ed. 926. Sec. 5 of the Federal Trade Commission Act is 'supplementary' to the Sherman Act. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 647, 51 S.Ct. 587, 589, 75 L.Ed. 1324, 79 A.L.R. 1191. Like the Sherman Act it seeks 'to protect the public from abuses arising in the course of competitive interstate and foreign trade. * * * The paramount aim of the act is the protection of the public from the evils likely to result from the destruction of competition or the restriction of it in a substantial degree.' Federal Trade Commission v. Raladam Co., supra, pages 647, 648 of 283 U.S., pages 589, 590 of 51 S.Ct., 75 L.Ed. 1324, 79 A.L.R. 1191. And as this Court said in Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 453, 42 S.Ct. 150, 154, 66 L.Ed. 307, 19 A.L.R. 882, the declaration of public policy contained in the Sherman Act is 'to be considered in determining what are unfair methods of competition, which the Federal Trade Commission is empowered to condemn and suppress.' For the Federal Trade Commission Act 'undoubtedly was aimed at all the familiar methods of law violation which prosecutions under the Sherman Act had disclosed.' Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 310, 54 S.Ct. 423, 425, 78 L.Ed. 814.
That history, of course, does not give us license to disregard plain and unambiguous limitations on the power of the Commission. But it does admonish us to construe one of a series of legislative acts dealing with a common or related problem in light of the integrated statutory scheme. See United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. —-, decided February 3, 1941. It warns us not to whittle away administrative power by resolving an ambiguity against the existence of that power where the full arsenal of that power is necessary to cope with the evil at hand. The evil here is direct, injurious discrimination against interstate commerce. The Commission has issued orders against some 120 of respondent's competitors prohibiting them from selling chance assortments of candy in interstate commerce. Under this decision respondent may continue to use this same unfair method of competition to increase its business at the expense of those who sell in interstate commerce and who are not free to employ the same methods in self-defense. I think the Act, an exercise by Congress of its commerce power, should be interpreted to protect interstate commerce not to permit discrimination against it.
Such an approach was used in the Shreveport case, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341, to give the Interstate Commerce Commission control over intrastate rates which injuriously affected, through an unreasonable discrimination, traffic that was interstate. That result was reached though the Act expressly denied the Commission any jurisdiction where the 'transportation' was 'wholly within one state'. This Court said (234 U.S. at page 358, 34 S.Ct. at page 839, 85 L.Ed. 1341) that those words had 'appropriate reference to exclusively intrastate traffic, separately considered; to the regulation of domestic commerce, as such. The powers conferred by the act are not thereby limited where interstate commerce itself is involved.' The interrelation between the intrastate and interstate activities in the instant case is hardly less intimate than in the Shreveport case. The fact that the nexus here is economic and not physical is inconsequential. In this case as in the other the problem is the existence of administrative authority to provide effective protection of interstate commerce against discrimination. In the Shreveport case statutory doubts were resolved so as to strengthen the administrative process even against the claim that thereby the state authorities would be 'shorn of those powers which alone can justify their existence.' Similar arguments should not deter us from being tolerant of an asserted power, admittedly constitutional, to deal effectively with the realities of economic interdependence.
The fact that a clarifying amendment to the Act was sought which would have removed the doubts as to the meaning of 'in commerce' is not material except to the extent that it shows that doubts existed. It does not aid in resolving those doubts. To be sure, recent statutes dealing with other fields have removed such doubts by explicit provisions. But they are of little aid in interpreting an earlier act in its own legislative setting. See United States v. Stewart, 311 U.S. 60, 69, 61 S.Ct. 102, 85 L.Ed. 40. And as to the charge that for a quarter of a century the Commission made no claim to such a power, two answers may be made. In the first place, as early as 1921, the Commission urged that the doctrine of the Shreveport case permitted an interpretation of the Act which would give it control over certain intrastate activities. Canfield Oil Co. v. Federal Trade Commission, 6 Cir., 274 F. 571; Hankin, Jurisdiction of the Federal Trade Commission, 12 Calif. L.Rev. 179, 197, et seq. Although the question does not appear to have been definitely settled, in 1926 the Commission received some support for its view. See Chamber of Commerce v. Federal Trade Commission, 8 Cir., 13 F.2d 673, 684. Cf. American Can Co. v. Ladoga Canning Co., 7 Cir., 44 F.2d 763, 770, 771. But in 1939 that power was denied. California Rice Industry v. Federal Trade Commission, 9 Cir., 102 F.2d 716, 723. Nonuse of the asserted power clearly cannot be inferred from that record. In the second place, it would not be relevant if this power did lay dormant for years. Mere non-use does not subtract from power which has been granted. The host of practical reasons which may defer exhaustion of administrative powers lies in the realm of policy. From that delay we can hardly infer that the need did not or does not exist.
Mr. Justice BLACK and Mr. Justice REED join in this dissent.
'Sec. 5. (§ 45.) (a) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.
"Commerce' means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation.' 15 U.S.C.A. § 44.
The Commission makes no claim of a contrary administrative practice. The cases which it cites in no way mitigate what is stated in the text of the opinion. (1) Counsel for the Commission apparently argued for recognition of the power claimed here in Canfield Oil Co. v. Fed. Trade Comm., 6 Cir., 274 F. 571, but the Commission had made no findings of discrimination against commerce and had only found that the Oil Company was engaged in commerce.
(2) The jurisdiction sustained in Chamber of Commerce of Minneapolis v. Fed. Trade Comm., 8 Cir., 13 F.2d 673, was very different from that claimed here. It rested on the fact that the Chamber conducted a market for grain in the current of interstate commerce. See Chicago Board of Trade v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839, and cases cited. (3) The order of the Commission reviewed in California Rice Industry v. Fed. Trade Comm., 9 Cir., 102 F.2d 716, resulted from proceedings instituted more than a year after this proceeding against Bunte Brothers had begun.


Douglas Walter Drazen, Binghamton, for appellant.
Hinman, Howard & Kattell, LLP, Binghamton (Robert H. Wedlake of counsel), for respondent.
Appeal from an order of the County Court of Broome County (Dooley, J.), entered October 13, 2016, which, in a proceeding pursuant to RPAPL article 7, affirmed a judgment of the Town Court of the Town of Kirkwood in favor of petitioner.
Respondent rented an apartment owned by petitioner in the Town of Kirkwood, Broome County pursuant to a lease that expired on November 30, 2015. Respondent stopped paying rent and moved out in October 2015 after water purportedly entered the apartment and caused a mold problem, but maintained possession by leaving his belongings there. He further complained to town officials about the condition of the apartment, which resulted in a directive barring the use and occupancy of the apartment due to violations of the Property Maintenance Code (see generally 19 NYCRR 1226.1).
Petitioner gave sufficient notice to respondent that, as of December 31, 2015, it was terminating what was, by that point, a month-to-month tenancy (see Real Property Law §§ 232-b, 232-c). Respondent failed to remove his belongings and, in January 2016, petitioner commenced this RPAPL article 7 proceeding to recover possession. At the hearing that ensued, respondent attempted to advance the defenses of constructive eviction, breach of the implied warranty of habitability and retaliatory eviction due to his complaints to town officials. The Town Court of Town of Kirkwood refused to consider those defenses, apparently viewing them to be irrelevant to the issue of possession. Town Court ruled in petitioner's favor and issued a warrant of eviction, as well as a judgment in the amount of $3, 280 for unpaid rent, counsel fees and other expenses. County Court affirmed, and respondent appeals.
"When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, '[t]he tenant continues in possession of any portion of the premises after the expiration of his [or her] term'" (Matter of Cat Hollow Estates, Inc. v Savoia, 46 A.D.3d 1293, 1294 , quoting RPAPL 711 ). The tenant is free, however, to raise "any legal or equitable defense, or counterclaim" in answering the allegations in the petition (RPAPL 743).
In that regard, respondent asserted a defense of retaliatory eviction, which includes the scenario wherein a landlord terminates a tenancy "to punish the tenant for complaining to government authorities and then... brings a holdover proceeding to evict the tenant" (Pena v Lockenwitz, 53 Misc.3d 428, 431 ; see Real Property Law § 223-b). Respondent made "[a] good faith complaint... to a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance" within the six months prior to the commencement of this proceeding (Real Property Law § 223-b  [a]; see Real Property Law § 223-b  [a]). As such, a statutory presumption of retaliation arose that obliged petitioner to come forward with "a credible explanation of a non-retaliatory motive for [its] acts" that would "overcome and remove the presumption unless [respondent] disprove[d] it by a preponderance of the evidence" (Real Property Law § 223-b ). Town Court was therefore obliged to hear this proof and, if it ultimately found retaliation, enter judgment for respondent and award "damages [or] other appropriate relief" to him (Real Property Law § 223-b ; see Real Property Law § 223-b ).
Town Court further failed to grapple with the defenses of constructive eviction and breach of the implied warranty of habitability raised by respondent. County Court correctly observed that these defenses cannot forestall an eviction in a holdover proceeding, but overlooked that they are viable "defense[s] to the recovery of rent" in such proceeding (Goethals Mobile Park v Staten Is. Meadowbrook Park Civic Assn., 208 A.D.2d 896, 897 ; see Blumenthal v Chwast, 2003 NY Slip Op 50029[U], *4 [App Term 2003]). With regard to constructive eviction, respondent represented that the apartment was contaminated by mold that affected his health and, while he left his belongings there, he was personally unable to remain there as the result of the action by town officials barring him from using or occupying the premises. As such, additional inquiry was undoubtedly required as to whether petitioner's actions or inactions "substantially and materially deprive[d] [respondent] of the beneficial use and enjoyment of the premises" so as to constitute a constructive eviction (Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83 ; see Bostany v Trump Org. LLC, 88 A.D.3d 553, 554 ; Phoenix Garden Rest. v Chu, 202 A.D.2d 180, 180 ). Further, "violation[s] of a housing, building or sanitation code" were found in the apartment and, if substantial, would "constitute prima facie evidence that the premises [were] not in habitable condition" (Park W. Mgt. Corp. v Mitchell, 47 N.Y.2d 316, 327 ; see Real Property Law § 235-b). Town Court expressed its skepticism as to the degree of damage to the apartment, and there were indications that respondent's own behavior prevented petitioner from repairing that damage. Nevertheless, Town Court erred in refusing to receive evidence on these defenses and determine whether either warranted an abatement in the amount of rent awarded to petitioner (see Park W. Mgt. Corp. v Mitchell, 47 N.Y.2d at 329; Goethals Mobile Park v Staten Is. Meadowbrook Park Civic Assn., 208 A.D.2d at 898-899).
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur.


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Art. 1º Approve amendment to the Regulations of Postdoctorate of UMESP, as attached.
Art. 2º This Resolution comes into force upon the date of its signing revoking Resolutions CONSUN # 02/2012 and other provisions to the contrary.
Art. 1º The Postdoctorate is an Improvement Internship, executed with the follow-up and collaboration of a professor doctor.
I - Have had the title of doctor for at least five years, obtained in a Postgraduation Program acknowledged by MEC or in a Postgraduation Program in Foreign Institutions.
II - Be part of the Teaching Body of Postgraduation Programs Stricto Sensu, acknowledged by MEC and maintained by UMESP, as a member of the Permanent Teaching Body or as a Coworker Professor for more than two years and accredited to guide those doing a doctorate.
III - Preferably, have done a post-doctoral internship in the country or overseas.
Sole paragraph: The host coworker shall not be able to have simultaneously more than two students doing a postdoctorate.
Art. 3º The Postdoctorate of UMESP aims to receive doctor researchers and lecturers, linked to other Institutions of Higher Education in Brazil or Overseas.
Art. 4º The participation in the Postdoctorate Internship does not generate a functional or employment link between UMESP and the student doing the postdoctorate.
Art. 5º The Postdoctorate Internship is developed by means of a plan of activities and a research Project submitted by the visiting researcher, in common agreement with the host coworker, approved by the respective collegiate of the Stricto Sensu program or commission of the Postdoctorate Program of the UNESCO Chairs of Communication for Regional Development/ Chair of City Management Celso Daniel and validated by the Stricto Sensu Committee.
Sole paragraph: The selective process of the visiting researchers occurs in a continuous flow system along the academic semester.
Art. 6º The Postdoctorate Internship will last from six months to two years, the visiting researcher being able to request, with the due justification and agreement of the host coworker, an extension for up to six months.
V - Execution of a lecture concerning the final results of the research done.
Art. 8º The Postdoctorate of UMESP will be executed in Stricto Sensu Postgraduation Programs, acknowledged by MEC, or in the Postdoctorate Program of the Chairs instituted in UMESP, whenever led by professors and researchers who fulfill that set forth in Art. 2.
I - Have the title of doctor, obtained by Postgraduation Programs acknowledged by MEC or by Postgraduation Programs of Foreign Institutions.
II - Have academic experience and scientific production compatible with the research project submitted.
Sole paragraph: The visiting researcher will be obliged to make available the resources required to develop the research, it not being possible to use the budgetary resources of UMESP for this purpose, the candidate being able to apply to the development agencies as CNPq, FINEP, CAPES, FAPESP, other FOUNDATIONS and CONGENERS, both domestic and foreign.
Be Brazilian or have a permanent visa in Brazil. A foreign candidate shall be in a legally acceptable situation in Brazil.
Art. 11º The acceptance in the Postdoctorate will be done by means of declaration of approval, issued by the host coworker, after approval by the respective Stricto Sensu Postgraduation Program collegiate or evaluation commission of the respective Chair.
Art. 12º The plan of activities and research project of the candidate shall be followed up by the host coworker, who shall submit to the Postgraduation Program Collegiate or Chair a six-monthly report, containing a circumstantial description of the activities developed in the period.
Art. 13º A final report will be demanded from the student doing the postdoctorate with the submission of the results of the research and documentation of the academic activities executed in the period, in accordance with the Activities Program proposed and approved.
1 The final research report will be evaluated and approved by the Postgraduation Program Collegiate or Chair to which the host coworker is linked.
2 The final report will be forwarded by the host coworker of the project and will receive a founded report of another professor of the Program or research stage.
Art. 14º At the end of the Postdoctorate Internship, after validation by the Stricto Sensu Postgraduation Committee, a certificate will be sent, by means of the General Secretariat – Diploma and Certificate Registration Sector, in which there shall appear the name of the host coworker, the Postgraduation Program or Chair, the Faculty and Research Group in which the project was developed, the title of the research executed, its duration and financing source, as well as the localization, city and country.
Sole paragraph: Annually a list of the postdoctorate internships executed will be forwarded to CONSUN, for knowledge thereof.
Art. 15º The cases omitted or of doubtful interpretation will be resolved by the Pro-rectory of Postgraduation and Research assisted by the Stricto Sensu Postgraduation Committee.

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Terry Brennan is the Litigation Coordinator for BakerHostetler's Cleveland office, with practice management responsibility for more than 40 litigation attorneys. He focuses his practice on complex business litigation and corporate criminal matters, representing banks, manufacturers, and other public and private corporations and individuals in a wide range of complex commercial disputes. In his white collar practice, Terry represents individuals and businesses in connection with investigations and prosecutions conducted by the DOJ, SEC, FDA, and other federal and state law enforcement agencies and regulatory bodies. He conducts internal investigations on behalf of corporate clients, lectures annually on effective depositions and has served as a state-appointed special prosecutor.
SIPC v. Bernard L. Madoff Investment Securities LLC: Leads a team of attorneys on behalf of the Securities Investor Protection Act (SIPA) Trustee in litigation of claims against former employees of Bernard L. Madoff Investment Securities LLC.
Client v. City of Cleveland: Represented a publicly traded company in a lawsuit alleging breach of contract that resulted in a multimillion-dollar settlement for the client.
Represents current and former supervisors of Volkswagen and Audi in connection with the Volkswagen emissions scandal.
Represents multiple shipping companies in connection with federal investigations involving the Clean Water Act and the Taft-Hartley Act.
Represented the co-CEOs of a private equity company in an SEC investigation alleging numerous securities law violations.
Represented a multimillion-dollar investment fund in an SEC investigation of a Ponzi scheme.
Represented a food manufacturer in an FDA investigation involving food contaminated by melamine.
Represented a university in an FDA investigation of diversion of controlled substances.
Plaintiffs v. Client: Successfully defended a telemarketing company in federal class action lawsuits alleging fraud and related cases of action.
CITA v. Client: Successfully defended a publicly traded bank against a $400 million lawsuit alleging failure to recognize interest in securities.
Winter Equipment Co. v. Client: Won jury trial on behalf of a manufacturer alleging misappropriation of trade secrets.
Kopp v. Client: Represented a bank and defeated claims alleging violations of federal antitrust law, the federal Truth in Lending Act, the Ohio Retail Sales Installment Act, and breach of fiduciary duty.
Client v. Hummer: Represented the nation's largest pharmacy in a lawsuit arising out of a merger agreement with claims and counterclaims totaling more than $100 million, resulting in a client victory.
Jacobs v. Jacobs: Represented a real estate developer and former Cleveland Indians owner in litigation brought by trust beneficiaries seeking removal of the client as a trustee and millions of dollars in damages, resulting in a client victory.
Represented a national architecture firm in a federal public corruption investigation.
Represents publicly traded banks in FINRA matters and other internal investigations.
Represented a publicly traded company in a DOJ customs investigation that was initiated by a search warrant. The client received a declination letter.
Represented a construction company, shopping mall development company, insurance company, and other businesses and individuals in public corruption investigations.
Represented a former CFO of a publicly traded company in an SEC civil case alleging fraudulent accounting.
Represented a former CFO of a publicly traded company in a class action alleging fraudulent accounting.
Represented a former officer of an office supply company in several lawsuits alleging violations of securities laws.
Investigated and prosecuted felony cases, including homicide and white collar crimes.

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Through his 40 + years of experience and significant trials, Rick Bybee has established himself as one of the state’s preeminent condemnation attorney handling cases for private and public entities. Rick has tried over thirty-five trials to verdict in condemnation and complex cases for landowners and public entities, such as the SC DOT, the City of North Charleston, and Central Electric Power Cooperative, Inc.
• And a successful inverse condemnation verdict for damages to residential homes arising from operations of a waste water treatment plant in Timmonsville, SC.
Rick began his legal career in 1977 at the South Carolina Attorney General’s Office, where he practiced until 1983. He then served six years as Deputy Chief Counsel for the South Carolina Department of Highways and Public Transportation. During that time he was responsible for condemnation and contract litigation throughout the state. His primary regional responsibility for eminent domain cases was in Charleston County where he handled cases for major road projects like I-256, the Isle of Palms Connector and the James Island Expressway.
In 1989 Rick joined the firm of Smith and Bundy, which evolved into the firm of Smith, Bundy, Bybee and Barnett. Rick handled civil litigation, including construction and condemnation cases for private and public entities, until 2016, when that firm dissolved. In late 2016, Mr. Bybee started his firm, the Law Office of Richard D. Bybee, LLC, continuing his representation of landowners and government entities in the fields of eminent domain, zoning and land use and general civil trial work.
Hilton Head Auto., LLC v. S.C. Dep’t of Transp., 394 S.C. 27, 30, 714 S.E.2d 308, 310 (2011).
Okatie Hotel Group, LLC v. Amerisure Ins. Co., 2006 WL 91577, (D.S.C. Jan 13, 2006).
Georgia Dept. of Transp. v. Jasper County, 586 S.E.2d 853, (S.C. Sep 15, 2003).
South Carolina Dept. of Highways and Public Transp. v. E.S.I. Investments, 505 S.E.2d 593, (S.C. Sep 14, 1998).
Bob Hammond Const. Co., Inc. v. Banks Const. Co., 440 S.E.2d 890, (S.C.App. Jan 24, 1994).
Gray v. South Carolina Dept. of Highways and Public Transp., 427 S.E.2d 899, (S.C.App. Oct 05, 1992).
Stevenson v. U.S., 960 F.2d 147, (4th Cir.(S.C.) Apr 21, 1992).
Manning v. South Carolina Dept. of Highway and Public Transp., 914 F.2d 44, (4th Cir.(S.C.) Sep 12, 1990).


An Act of Congress of June 2, 1920, § 4, c. 218, 41 Stat. 731 (Comp. St. § 5207d), provides that, if any offense shall be committed in the Yosemite National Park which is not prohibited by a law of the United States, the offender shall be subject to the same punishment as the laws of California prescribe for a like offense. Plaintiff in error was indicted for violating within that park the California Criminal Syndicalism Act (chapter 188, California Statutes 1919). The indictment was in two counts. The verdict was guilty on the first count and not guilty on the second. Plaintiff in error, by demurrer and by motion to arrest the judgment, insisted that the statute contravenes the Constitution of the United States. His contention was overruled. The case is here under section 238 of the Judicial Code (Comp. St. § 1215) before the amendment of February 13, 1925.
'Section 1. The term 'criminal syndicalism' as used in this act is hereby defined as any doctrine or precept advocating, teaching, or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.
Plaintiff in error here contends that, as applied in the district court, these provisions are repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The only attack upon the validity of the law was by the demurrer and motion in arrest. In each of these, he asserted that the statute 'is in violation of the Fourteenth Amendment of the Constitution of the United States and is void for uncertainty.' But that point is determined adversely to his contentions in Whitney v. People of the State of California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, decided this day.
He calls attention to the language in section 1 and says the merely loading telephone poles on a ship so as to occasion more work is not physical damage or injury to physical property within the meaning of the statute.
'I heard * * * a member of the I. W. W. say in a speech on May 10, 1923: 'When you go back to work, if we do have to go to work, we will put on the wooden shoe.' Then he said: 'In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook."
While one of the purposes of such improper loading of ships may be to create more work for the men, and so to inflict loss on employers, it is also plainly calculated to endanger the vessels, their cargoes, and the lives of those aboard. By the instruction complained of the consideration of the jury was limited to 'things of that kind.' The advocating of the malicious commission of such acts is to teach and abet sabotaghe-physical damage and injury to physical property; it also is to teach and abet crime and unlawful methods of terrorism. It was not necessary for the prosecution to show that the elements of criminal syndicalism were advocated or taught with the precision of statement required in indictments for criminal acts involved. Cf. Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545, decided January 3, 1927. The purpose and probable effect of the printed matter circulated and of the things said in furtherance of the declared purposes of the organization are to be considered having regard to the capacity and circumstances of the persons sought to be influenced. When there is taken into account the evidence referred to and the parts of the charge preceding and following the part of the charge here assailed-and especially the giving and reiteration of the statutory language defining sabotage-it is quite apparent that the instruction was not erroneous.
Both sides have dealt with the case here as if the question were properly raised, and we have considered its merits. McNitt v. Turner, 16 Wall. 352, 362, 21 L. Ed. 341; Baltimore & Potomac Railroad v. Mackey, 157 U. S. 72, 86, 15 S. Ct. 491, 39 L. Ed. 624; Norfolk& W. R. Co. v. Earnest, 229 U. S. 114, 33 S. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172; Cf. West v. Rutledge Timber Co., 244 U. S. 90, 99, 100, 37 S. Ct. 587, 61 L. Ed. 1010. But, after examining the record, we think plaintiff in error failed to make any objection or effectively to take exception to the charge complained of. The exception there indicated did not call the court's attention to the instruction now attacked. It was general in form, and applied to the series of statements that followed it, covering about two pages of the record. Plaintiff in error does not contend that all of them are erroneous, and obviously they are not. The rule is well established that, where a series of instructions are excepted to in mass, the exception will be overruled, if any one of them is correct. Johnson v. Jones, 1 Black, 209, 220, 17 L. Ed. 117; Beaver v. Taylor, 93 U. S. 46, 54, 23 L. Ed. 797; McDermott v. Severe, 202 U. S. 600, 610, 26 S. Ct. 709, 50 L. Ed. 1162. Exceptions to a charge must be specifically made, in order to give the court opportunity then and there to correct errors and omissions, if any. Pennsylvania R. Co. v. Minds, 250 U. S. 368, 375, 39 S. Ct. 531, 63 L. Ed. 1039, and cases cited; Allis v. United States, 155 U. S. 117, 122, 15 S. Ct. 36, 39 L. Ed. 91. Even if some of the instructions were erroneous, the exceptions taken were not such as to require a new trial.
The record does not contain all the evidence, and fails to show that it includes all relating to the matter referred to in this instruction. We think it cannot be said as a matter of law that the things there mentioned, when taken in connection with other facts, may not have been proper for consideration in connection with some element of the criminal syndicalism charged. Moreover, no objection was made or exception properly taken to that part of the charge. Here again the exception failed specifically to point out the instruction now assailed as erroneous.
This writ of error was allowed under section 238 of the Judicial Code, on constitutional grounds, prior to the amendment of February 13, 1925. All alleged errors at the trial which were properly excepted to are therefore before us. Chaloner v. Sherman, 242 U. S. 455, 457, 37 S. Ct. 136, 61 L. Ed. 427. There was, at least, one error committed which, in my opinion, justifies reversal and which does not involve a constitutional question. For that reason, according to the practice approved by the court, I refrain from discussing the constitutional questions presented. See Liverpool, N. Y. & Phila. Steamship Co. v. Emigration Comm'rs, 113 U. S. 33, 39, 5 S. Ct. 352, 28 L. Ed. 899; Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 345, 12 S. Ct. 400, 36 L. Ed. 176; Howat v. Kansas, 258 U. S. 181, 184, 42 S. Ct. 277, 66 L. Ed. 550.
'The statute, itself, you will notice, however, denounces sabotage as meaning willful and malicious physical damage or injury to physical property.
'Under similar circumstances I heard Leo Stark, a member of the I. W. W., say in a speech on May 10, 1923: 'When you go back to work, if we do have to go to work, we will put on the wooden shoe.' Then he said: 'In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook.
'Mr. Lewis: 'I move that that answer be stricken out as immaterial, irrelevant, and incompetent, not within the definition of sabotage as laid down in the statute, or the criminal syndicalism law.
'The Court: I cannot see it. As I said before, I cannot see but what any deliberate act, the purpose of which is to reduce the profits of the physical thing, is not equally an injury. Motion denied.
The exception to the charge is insisted on, although the objection to the admission of the evidence is not urged here. The charge was clearly erroneous. It plainly directed the jury that 'slowing down on the job' and 'scamped work' constituted sabotage within the meaning of the statute. Since the jury must have taken it to be an exposition or interpretation of the words of the statute, the error was not cured by definition, elsewhere in the charge, of sabotage in the terms of the statute. The court ruled throughout the course of the trial, that evidence to show a program of scamped work was admissible. Much of the government's evidence consisted of documents showing such a program on the part of the I. W. W. The charge inevitably led the jury to think that all such evidence showed the guilty character of the organization.
It is said that the charge, if erroneous, was not prejudicial, because the illegal character of the organization was established by other evidence than that which formed the basis of the charge, and because even the latter evidence showed the advocacy of acts which amounted to a malicious destruction of property, and so might properly support a conviction even under proper construction of the statute. Even in civil cases erroneous rulings, especially those embodied in instructions, are presumptively prejudicial. Fillippon v. Albion Slate Co., 250 U. S. 76, 82, 39 S. Ct. 435, 63 L. Ed. 853; United States v. River Rouge Co., 269 U. S. 411, 421, 46 S. Ct. 144, 70 L. Ed. 339. The illegal character of the organization was not conceded. There was evidence from which the illegal character might have been deduced. But the evidence related, in the main, to the acts of individuals. The effort of the defense was to disavow those acts.
It is also said that the exception to the charge was not properly taken. The defendant excepted specifically to that portion of the charge which dealt with sabotage. The precise ground of the exception was not set forth. But the continued objections to the admission of evidence upon the ground here urged, and the court's adverse rulings thereon, could have left no doubt in the mind of the court as to what was meant by the exception here in question. Moreover, the case comes to this court from a lower federal court. We have, therefore, the power to correct errors committed below although objection was not taken there. That power has been repeatedly exercised in criminal cases. See Wiborg v. United States, 163 U. S. 632, 658-660, 16 S. Ct. 1127, 1197, 41 L. Ed. 289; Clyatt v. United States, 197 U. S. 207, 221, 222, 25 S. Ct. 429, 49 L. Ed. 726. This case, I think, warrants its exercise.