Outline Property for Depot

8/2/2019 Outline Property for Depot

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MARBES PROPERTY- FALL 2011

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MARBES- Property- Fall 2011

PROPERTY OUTLINE

CONCEPT OF PROPERTY AND PROPERTY RIGHTS

What is Property?

1. The right to possess, use, and enjoy a determinate thing (either a tract of land or chattel)2. A bundle of legally enforceable rights among people concerning valuable resources (EPUT)3. The right of ownership (the institution of private property is protected from under governmental interference) BUNDLE OF RIGHT

a. Real property is land and any structures built on itb. Personal property, which is everything else, consists of tangible items (things that can be seen or felt, such as a watch or book)

and intangible items (property that cannot be seen, such as a bank account or a right not to be unfairly kicked out of law school).

NOTE: Property is not limited just to what we can see or feel. Property can include a copyright, a promise, airspace, a right to fish, andso on.

The function of property law is to determine who among the competing claimants gets what when and under what conditions.

Bundle of Rights- EPUT

Right to Exclude- sine qua non- give someone the right to exclude others from a valued resource- deny someone the exclusive right. Right to Possess Right to Use (and destroy) Right to Transfer

Calabresi & Melamed

Define: Entitlement- whenever a state is presented with the conflicting interests of two or more people, or two or more groups of people, it

must decide which side to favor.


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ACQUISITION OF PROPERTY- FIRST IN TIME

Methods of Acquiring Property

First Possessor Subsequent Possessor

-Capture -Sale and Purchase

-Conquest -Gift

-Creation -Find

-Adverse Possession

-Trust

-Inheritance

Theories of Property Rights:

1. First in Time- the first person to take occupancy or possession of something owns itMoore v. Univ.- Moores claim to his cells that were removed for genetic researchCourt found that Moore had no property rights to his discarded cells or any profits made from them. However, the court concluded that the

research physician did have an obligation to reveal his financial interest in the materials harvested from Mr. Moore, and that Mr. Moore would

be allowed to bring a claim for any injury that he sustained as a result of the physician's failure to disclose those circumstances.

The opinion first looked at Moore's claim of property interests under existing law. The court first rejected the argument that a person has an

absolute right to the unique products of their body because his products were not unique. ("[the cells are] no more unique to Moore than the

chemical formulaforhemoglobin").

The court then rejected the argument that his spleen should be protected as property in order to protect Moore's privacy and dignity. The court

held these interests were already protected by informed consent. Finally, the property at issue may not have been Moore's cells but the cellline created from Moore's cells.

The court then looked at the

policy behind having Moore's cells considered property. Becauseconversionof property is astrict liabilitytort, the

court feared that extending property rights to include organs would have a chill ing effect on medical research. Laboratories doing research

receive a large volume of medical samples and could not be expected to know or discover whether somewhere down the line their samples

were illegally converted. Furthermore, Moore's interest in his bodily integrity and privacy are protected by the requirement of informed consent

(which must also inform about economic interests).
http://en.wikipedia.org/wiki/Chemical_formulahttp://en.wikipedia.org/wiki/Chemical_formulahttp://en.wikipedia.org/wiki/Hemoglobinhttp://en.wikipedia.org/wiki/Hemoglobinhttp://en.wikipedia.org/wiki/Hemoglobinhttp://en.wikipedia.org/wiki/Conversion_%28law%29http://en.wikipedia.org/wiki/Conversion_%28law%29http://en.wikipedia.org/wiki/Conversion_%28law%29http://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/Conversion_%28law%29http://en.wikipedia.org/wiki/Hemoglobinhttp://en.wikipedia.org/wiki/Chemical_formula


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Conversion- An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of anotherto control it that the actor may justly be required to pay the other the full value of the chattel.

Pierson v. Post-The hunter who actually kills or captures (capture rule theory) a wild animal, and immediately takes possession of it acquires

title.

RULE-Mere pursuit alone vests no property right in the huntsman; and that every pursuit, accompanied with wounding is equally ineffectual for

that purpose, unless the animal be actually taken

Johnson v. MIntosh-Indians have the power to give to private individuals to receive a title to land. Who first acquired the interest in the

property?

RULE-The Ds who obtain their title from the government, which acquired title through conquest/discovery, is the rightful owner of the land.

The Indians held a right of occupancy:

2. Labor-Desert- people are entitled to benefit from the property that is produced by their labor.US Steel- union workers at the plant seek to enforce an alleged promise of the D who said they would keep the plants open as long as they

remain profitable.

Popov v. Hayashi- the possession of the baseball was lost.

GRAYS RULE- Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and

the effort is interrupted by the unlawful cognizable pre-possessory interest in the property. (constructive possession)

Define: Constructive Possession-is alegal fictionto describe a situation where an individual has actual control overchattelsorreal property

without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a

person with actual possession.

For example, if one's car is sitting in one's driveway, one has physical possession of the car. However, any person with the key has constructive

possession, as they may take physical possession at any time without furtherconsentfrom one.

Define: Legal Fiction- An assumption that something is true even though it may be untrue, made especially in judicial reasoning to alter how a

legal rule operates.
http://en.wikipedia.org/wiki/Legal_fictionhttp://en.wikipedia.org/wiki/Legal_fictionhttp://en.wikipedia.org/wiki/Legal_fictionhttp://en.wikipedia.org/wiki/Chattelshttp://en.wikipedia.org/wiki/Chattelshttp://en.wikipedia.org/wiki/Chattelshttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Consenthttp://en.wikipedia.org/wiki/Consenthttp://en.wikipedia.org/wiki/Consenthttp://en.wikipedia.org/wiki/Consenthttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Chattelshttp://en.wikipedia.org/wiki/Legal_fiction


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3. Utilitarianism: Traditional TheoryUnder the traditional utilitarian theory, property exists to maximize the overall happiness or utility of all citizens. Accordingly, property

rights are allocated and defined in the manner that best promotes the general welfare of society. This is the dominant theory underlying

American property law.

4. Utilitarianism: Law and Economics ApproachThe law and economics approach incorporates economic principles into utilitarian theory. This view essentially assumes that human

happiness can be measured in dollars. Under this view, private property exists to maximize the overall wealth of society. Critics question

the assumption that social value can be appropriately measured only by examining ones willingness to pay.

(a) Exclusivity - Other people can be excluded from, and making decisions regarding, what you own. You decide the most efficient way to

handle your property.

(b) Universality - If a resource is limited, it should be owned. If it is universal, like sunlight or air, it cannot be owned.

(c) Transferability - You can sell or give your land to someone else.

5. Personhood-private property is essential to the complete development of a personMoore v. Univ.

RIGHT TO EXCLUDE AND ITS LIMITS TRESPASS

Right to Excludeis the sine qua non (of property). Give someone the right to exclude others from a valued resource i.e. resources that us

scarce relative to human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.

Define: Trespass- the intentional entry (of the actor, a thing, or a third party) onto land owned or occupied by another (withoutprivilege).

Define: Ejectment- a legal action by which a person wrongfully excluded from property seeks to recover possession, damages,and costs.

Define: Intentional- Requires no malice or actual purpose to do harm; the entry was a result of a voluntary act.Entry onto land without privilege

Owned or Occupied by Another

Define: Possession- A person who is possession of land includes only one who: Is in occupancy with the intent to control it or


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Has been no longer is in occupancy; after he ceased his occupancy without abandoning the land, no other person hasobtained possession, or

Has the right as against all persons to immediate occupancy of land, i f no other person is in possession. Define: Privilege-

o Consent-Explicit; Implicito Necessity-To prevent serious harm to person or property

Jacque v. Steenberg- dragged mobile home through their land.

RULE- Nominal damage for intentional trespass to land may support an award of punitive damages.

Define: Property rule- someone wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the

value of the entitlement is agreed upon by the seller

Uses the least amount of state intervention Involves a collective decision as to who is to be given an initial entitlement but not as to the value of the entitlement.

Define: Liability rule- whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it,

entitlement is protected by this rule.

The value maybe what it is thought the original holder of the entitlement would have sold it for. Requires some state intervention

Liability v. Property

Liability Rule Property Rule

Whenever someone

may destroy the initial

entitlement of another,if he is willing to pay an

objectively determined

value for it. This value

should be equal to the

amount for which the

original holder of the

entitlement would have

sold it.

Whenever someone who

wishes to remove the

entitlement from itsholder must buy it from

him in a voluntary

transaction in which the

value of the entitlement

is agreed upon by the

seller.


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Define: Sunbursting- exception to the general rule Blackstonian Doctrine- a decision which overrules precedent is accorded retroactive effect

State v. Shack-migrant worker wants government employee to come on owners land to help them.Issue

Whether the convictions of defendants for criminal trespass should be upheld

Rationale

Property rights serve human values. They are recognized to that end and are limited by it. We find it unthinkable that the farm employ can assert a right to isolate the migrant worker in any respect significant for the workers well-being

VALUES Promoted:

Reduction or avoidance of violence Productive use of resources

o Money that would be spent on security measures can be spent on other activitieso Land is used to fullest potential

PRESCRIPTIVE EASEMENTS

Melendez v. Hintz- argument over the sharing of a driveway

Elements of Prescriptive Use

C/U

O/N

P

AH

1. Actual- the claimant must make sure actual, physical use of a defined area.2. Open & Notorious

the claimants use must be sufficiently visible and apparent that a diligent owner who was present on the land would be able to discover theclaimants use

the use must not be hidden or concealed but it is NOT necessary the true owner have actual knowledge of the use.3. Hostile (and Under a Claim of Right)- the use must interferewith the title owners rights to use the property.

Exceptions


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o Compatible Use- if the true owner of property constructs a way over his own land for his own use, then the mere use by others thatdoes not interfere with the true owners use is presumed to bepermissive.

o Wild Lands- if the land that is used is wild, unenclosed or unimproved, then the use is presumed to bepermissive.4. Continuous and Uninterrupted

the claimants use must be as continuous and frequent as is appropriate given the location, nature and character of the land. The record owner must not succeed in stopping the claimants use---even for a short time- or the period restarts.

5. Prescribed Period- claimant must use the property (as described in all previous elements) for the period prescribed by applicable law.a. Common law- 21 yearsb. Statutes- 5-40 years

ADVERSE POSSESSION

Define: The enjoyment of real property with a claim of right when that enjoyment is opposed to another persons claim and is continuous,

exclusive, hostile, open and notorious. (POACHER)

Possession

Open

Actual

Continuous

Hostile

Exclusive

Required Period

Actualpossession of the property must physically use the land as a property owner would, in accordance with the type of property,location, and uses. Merely walking or hunting on land does not establish actual possession. The actions of the disseisor must change the

state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree

stumps, running livestock and constructing buildings or other improvements.

Open and notorious use of the property use of the property is so visible and apparent that it gives notice to the legal owner thatsomeone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge,

this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or

animals that a diligent owner could be expected to know about.

Actual Continuoususe of the property for statute of limitations purposes, hold that property continuously for the entire limitations period,

and use it as a true owner would for that time. This element focuses on adverse possessor's time on the land, not how long true owner

has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts

have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous
http://en.wikipedia.org/wiki/Huntinghttp://en.wikipedia.org/wiki/Noticehttp://en.wikipedia.org/wiki/Noticehttp://en.wikipedia.org/wiki/Hunting


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possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal

action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of

the disseisor's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.

Hostile or adverse use of the property The disseisor entered or used the land without permission. Renters, hunters or others who enterthe land with permission are not hostile. The disseisor's motivations may be viewed by the court in several ways: Objective viewused

without true owner's permission and inconsistent with true owner's rights. Bad faith or intentional trespass viewused with the adverse

possessor's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostili ty). Good faith

viewa few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim

the land against all possible claims.

Exclusive use of the property The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barnon the owner's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. (Note: There may be more than

one adverse possessor, taking as tenants in common, so long as the other elements are met.)

Required PeriodPolicies for Adverse Possession

1. Stale Claims: Acts as a conclusive presumption of ownership after too much time as elapsed to insure accurate resolution of title disputes.2. Quieting Title: Reduces costs associated with clearing or quieting title.

3. Sleeping on Rights: Punishes TOs who fail to effectively assert property rights.

4. Earning Rights: Rewards those who effectively use property and protects reliance interests.

Mullis v. WinchesterP used land to cultivate timber

Claimant asserts title by adverse possession to an entire land, typically by virtue of an invalid deed or perhaps due to an ambiguity arising from

confusion about inheritance. (this case- Invalid Deed)

Define: Boundary Disputes or the situation in which an owner of one parcel encroaches upon (and subsequently claims title to) a portion of a

neighboring parcel.

Define: Office ofcolor of title is to define the extent of the claim and to extend the possession beyond the actual occupancy to the whole

property described in

the paper. His actual possession of a portion of the property will be constructively extended to the boundaries defined by his color of title

RULE- the claimant must actually possess a defined area of land.


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The claimants possession must be as continuous and frequent as is appropriate given the location, nature and character of the land. The record owner must not succeed in stopping the claimants possession even for a short time or the period restarts.

Open and Notorious Possession

Stump v. Whibco-involves boundary disputes- when one neighbor has possessed some land beyond the actual boundary of an adjacent parcel owned by someone else.Stumps have failed to sustain their burden of proving open and notorious possession for a period of time. (30 year statute)

Calculating The Period

Tolling: In calculating the period under the SOL, subtract the time the title owner is legally disabled from protecting his property. Disability: typically includes under age of majority, mentally incompetent, imprisoned Majority: The period will be tolled only if the disability exists at the time AP enters. Minority: The period will be tolled anytime the TO suffers a disability. Tacking: In calculating the period under the SOL, add the time a predecessor in privity adversely possessed the property. Privity: Is a nexus or relationship that exists when one person voluntarily transfers her possessory rights to the next possessor. Privity does NOT exist when one person ousts another or simply trespasses after the other abandons the property.

Rule: possession is open and notorious only when the true owner has actual knowledge. When the possession of land is clear and large enough

to be immediately visible, there is a presumption that the true owner has actual knowledge of the adverse occupancy; however, there is no

presumption of actual knowledge by the true owner when the encroachment is of a small area along a common boundary and is not clearly and

self-evidently apparent to the naked eye.

Hostility and Claim of Right

Norman v. Allison- Norman built a fence on Allisons land

Adverse under- Claim of Right

The conduct must interfere with the title owners rights to possess the property and evidence the adverse possessors claim of right.

Define: Claim of Right

Objective- APs state of mind is irrelevant

Good Faith- AP must believe, in good faith, which she/he owns or holds title to the land

Intentional Tresspass- AP must

Know the s/he does not actually own or hold title to the land; and Subjectively intend to take title from the TO


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Related Doctrines

Mutual Recognition and Acquiescence-Estoppeltoppel Principles

The true owner is estopped from reclaiming title to a dispute parcel because:a. The true owner made representations to the other party as to the location of the boundary;b. The claimant detrimentally and reasonably relied upon such representations; andc. The claimant would be unduly injured if the true owner were permitted to recover possession now.

The Good Faith Improver

An improvement is mistakenly made on land owned by another and the improver acted in good faith and under a claim of right, then the

improver will be entitled to relief if the true owner, after he knew of the mistaken improvement, failed to act or otherwise engaged in

misconduct

Freehold Estates

Present Estate Future Interest

Grantor

Future Interest

3rd

party

FSA

FSD Possibility of Reverter

FSSCS Right of entry

FSSEL Executory Interest

Fee Tail Reversion Remainder

Life Estate Reversion Remainder

Non-Freehold Estates

Present Estate Future Interest

Grantor

Future Interest

Third Party

Tenancy for Yrs Reversion Remainder

Periodic Tenancy Reversion Remainder

Tenancy at Will Reversion Remainder

Tenancy at Sufferance Reversion Remainder


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Present Estate- Is the present legal right to immediate possession of the property.

Future Interest- Is the present legal right to future possession of the property.

Words of Purchase- specify to whom the transfer will be made.

Words of Limitation- describe the duration of the estate or interest and identify the type of rights transferred.

Present Estates- FSA, Fee Tail, Life Estate (FLOW CHART AT THE END)

SEE FLOW CHART FOR

Freehold Estate FSA Fee Tail Life Estate

How to Analyze the Grant

Analyze the Terminology in Grant

Read the grant from beginning to end- reading comma to comma Identify who holds the estate or interest Identify which estate or interest is involved Identify how long the estate or interest lasts

Present Estates

How is the estate created? What is the duration of the estate? When is the estate transferable?


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White v. Brown- Action to determine whether a will conveyed a fee simple to the P, Evelyn White or merely a life estate to the P with the

remainder interest going to the Ds

Rule: When constructing a will it is important to clearly delineate the intent of the grantor, as rules of construction of wills will favor fee simple

possessory interests as to not al ienate the property interest

Holographic will- A will that is handwritten by the testator

Restatement 2d of Property- identifies three types of direct restraints

1. Disabling restraint- this is yours, but any attempt to transfer it will be void- purports to deny the grantee any power to alienate theproperty in the future.

2. Forfeiture restraint- this is yours, but if you transfer it, then the property reverts back to me- does not expressly purport to preventthe grantee from transferring the land, but provides for a forfeiture in the event of any such transfer.

3. Promissory restraint- this is yours and you promise not to transfer it in the future- involves promise by the grantee not to alienate theland, which promise might be enforced by an action for damages or for an injunction.

Baker v. Weedon- The Appellee wishes to sell the property to provide adequate income for the rest of her life, as she can no longer farm the

land.

The law of waste concept is designed to ensure that uses of the property maximize the propertys value. The central idea of the law of waste is

to ensure that the life tenant of the property does not unreasonably interfere with the expectations of the remaindermen

New RULE was adopted- the sale would be proper if necessary for the best interest of all the parties

Courts have identified three basic types of waste:

Voluntary or affirmative waste- is an affirmative action by the life tenant that damages the land by changing its nature, character, or improvements to the

detriment of the future interest holders rights

Ex: destruction or substantial alteration of a structure on the property.

(action-loss of value)

Permissive waste- damage to the future interest holder that occurs by virtue of the life tenants failure to maintain and preserve the land and its

improvements properly.

Ex: the life tenants failure to pay real estate taxes or her failure to maintain the roof of a building. (inaction- loss of value)


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Ameliorating waste- arises when the life tenant changes the nature or character of land or its improvements, but the change increases the economic value of

the land.

(action-increase of value)

Ex: developer wants to tear down older homes and put in a multi-use project- neighbors would not like it. Conservation purposes- wants to improve it

or completely change it.

Present Estates- Defeasible Fees

SEE FLOW CHART FOR

FSD FSSCS FSSEL

1. Alienable can be transferred through an inter vivos conveyance (such as a deed or trust document)2. Devisable can be transferred through a testamentary conveyance (by a valid will).3. Inheritable can be transferred through operation of law when the owner dies intestate (without a valid will).

Marenholz-(FSD) Conveyed land with this clause this land is to be used for school purposes only; otherwise to revert to Grantors herein

Rule: Use of the word only in granting clause regarding a condition establishes that a grantor intended to create a fee simple determinable

rather than a fee simple subject to condition.

The language this land to be used for school purpose only is an example of a grant which contains a limitation within the granting clause. It

suggests a limited grant, rather than a full grant subject to a condition, and thus, theoretically and linguistically gives rise to a fee simpledeterminable.

Roberts v. Rhodes- (FSA) conveyed land with this clause it being understood that this grant is made only for school or cemetery purposes

Humphrey v. CG Jung Educational Center

The language is ambiguous because it creates a right to re-enter but also contains terms giving grantors the option to enforce restrictionthrough injunction or damages


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Alby v. Banc One Financial-

RESERVATION- in favor of the Grantors, their heirs and assigns, an automatic reverter, should the property conveyed herein ever be mortgaged

or encumbered within the life time of either Grantor.

Restraint on alienation- a restriction, usually in a deed of conveyance, on a grantee's ability to sell or transfer real property; a provision that

conveys an interest and that, even after the interest has become vested, prevents or discourages the owner from disposing of it at all or from

disposing of it in particular ways or to particular persons.

SEE FLOW CHART FOR- Future Interests

Kost v. Foster

Rule: the remainder is a vested remainder in those remaindermen in being at the time of the deed where there is no clause inserted in the

conveyance which would make the remainder subject to being divested.

RAP and Other Special Rules

SEE FLOW CHART FOR

Merger Rule The Rule on Shelleys Case

Doctrine of Worthier Title RAP

Abrams v. Templeton

Hensley-ONeal v. Metropolitan Natl Bank- Grandmother leaves land to family as deep as great grand children

RAP was violated because the gift to the grandchildren was not vested.

Inserted the savings clause-who are alive at the time of my death which put the measuring life for the RAP the testators grandchildren.


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CONCURRENT ESTATES

A concurrent estate exists when two or more persons hold title to or interests in a present possessory estate in property.

Types

1. Tenancy in Common2. Joint Tenancy3. Tenancy in the Entirety

Concurrent Ownership:

Tenancy in Common, Joint Tenancy, and Tenancy by Entirety

Successive ownership (i.e. a life estate in A, followed by a remainder in B). Property can also be owned by two or more persons concurrently.

For example, A and B can be concurrent owners of a possessory fee simple, a life estate, or even a remainder.

Courts will always look at the grantors intent.

TENANCY IN COMMON

To A and B as tenants in common in fee simple absolute

EERYONE HAS EQUAL PERCENTAGE OWNERSHIP- default

Exclude

Posses

Use

Transfer

A tenancy by two or more persons in equal or undivided fractional interest of shares each person having an equal right to possessthe whole property but no right of survivorship. (each person has 50% ownership in the

property so if one dies it does not automatically go to the other owner- it goes to the persons estate)

Can transfer by sale, inter vivos gift or will upon death (alienable, devisable, & inheritable)


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Example- O conveys to N and E as tenants in common. Each tenant can take possession of every square foot of the property

and use it to the same extent as if he owned it individually. N or E cannot exclude each other from enjoying possession of the

property.

A tenancy in common is a form of concurrent ownership wherein:

Each co-tenant is the owner of a separate and distinct share of theproperty, which has not been divided among the co-tenants.

Each tenant in common holds an undivided fractional share in the entire property Tenancies in common can arise by an express conveyance or devise to persons as tenants in common or when persons inherit property

from a decedent.

Today, a grant only from A to B creates a tenancy in common, unless specific language in the instrument makes it a joint tenancy (on thisspecific point, see "joint tenancy" below).

Each tenant in common has the right to possess and enjoy the entireproperty, subject to the same right in each co-tenant. One co-tenant can

go into possession of the whole unless another co-tenant objects.

EX: O dies, leaving a son S and a daughter D as her heirs. D has

the right to, and does, move into the house. Unless S objects,

there is no problem with respect to the right of possession.

When a tenant in common dies, his interest passes to his devisees or heirs. It does not go to the surviving tenant in common.

Unlike a joint tenancy or a tenancy by the entirety, a tenancy in common does not have a right of survivorship.

Equal shares are not necessaryfor a tenancy in common. A and B can be tenants in common, with A holding a four-fifths interest and B holding

a one-fifth interest. It is presumed that the shares of tenants in common are equal, but this presumption can be overcome by evidence thatunequal shares were intended.

EX: A and B, who are not related to each other, purchase

property as tenants in common. If A puts up three-quarters of

the purchase price and B one-quarter, it will likely be held

that A did not intend to make a gift to B, and that the parties

have undivided interests proportionate to the amount each

paid.


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Tenants in common can have different types of estates. Suppose that A and B are tenants in common, and that A dies, devising his half-

interest to C for life, remainder to D. C now owns a life estate and D a remainder in a one-half interest held in a tenancy in common with B.

A tenant in common can sell, give, devise or otherwise dispose ofhis undivided share in the same manner as if he were the sole owner of

the property.

A tenant in common can do as he wishes with his property without the consent of the other tenants.

Example- O conveys to N and E as tenants in common. Each tenant can take possession of every square foot of the property and use it to the

same extent as if he owned it individually. N or E cannot exclude each other from enjoying possession of the property.

EX: A and B are tenants in common. Subsequently A conveys

his one-half interest to C, D, and E as tenants in common.

Thereafter B, C, D and E are tenants in common, B owning

a one-half undivided interest and C, D, and E each owning

a one-sixth undivided interest.

In a tenancy in common, a creditor can only reach the interest of the tenant with the bad credit.

If a husband and wife have a tenancy in common and get a divorce wherein each one contests the other's property interest, then a judge

decides how to split the property interest.

Under modern law, whenever a conveyance is made to two or more persons who are not husband and wife, they are presumed to take as

tenants in common and not as joint tenants, unless there is evidence that a joint tenancy is intended.

JOINT TENANCY- All four have to present at the same time and on the same instrument. A tenancy with two or more co-owners who take identical interests simultaneously by the same instrument- 70% owner/30% owner but still own the entire property as a

whole

with the same right of possession. joint tenant has a right of survivorship to the others share (the death of one joint tenant will result in ownership of the land by the

surviving tenants

legal fiction- per my et per tout- by the share and by the whole


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transferable during your lifetime if no will- death extinguishes their share and goes to surviving tenants- who all along owned the entire interest the property is subject to partition not devisable or inheritable

How do you destroy the joint tenancy- transfer the unity of title, time

To A and B as joint tenants with right of survivorship in fee simple absolute, and not as tenants in common

for and during their joint lives and upon the death of either of them, then to the survivor of them

(indicates an intention of the parties to share a tenancy in common for life, with cross remainders for life,

with remainder in fee to the ultimate survivor).

EXAMPLES- of using language that is to ambiguous

O to A and B as joint owners it is not clear whether A and B were meant to hold title as tenants in common or as joint tenants.

Ajoint tenancy is a form of concurrent ownership wherein:

each co-tenant owns an undivided share of property (as in a tenancy in common) the surviving co-tenant(s) has the right to the whole estate. The right of survivorship is the distinctive feature of the joint tenancy. There is no limit on the number of persons who can hold together as joint tenants. On the death of each joint tenant, the property belongs to the surviving joint tenants, until only one is left. The tenant(s) who lives longest takes the property by himself.

A joint tenancy can be created by the deed or by will, or by a joint adverse possession. Joint tenancy does not arise where persons inherit

property by intestate succession. Heirs always take as tenants in common. The presumption today is that a conveyance to two or morepersons creates a tenancy in common, but there are exceptions.

In some states, a husband and wife are presumed to take as joint tenants or tenants by the entirety.

Executors and trustees are presumed to hold as joint tenants. Thus, upon the death of one fiduciary,

the surviving fiduciary continues to manage the estate or the property, since it would be very inconvenient to have the heirs of the dead

fiduciary come in and claim to be co-executors or co-trustees.


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A joint tenancy can be created in either real or personal property.

Since the joint tenants are regarded, by a common law fiction, as composing one entity, the common law requires their interests be equal in all

respects. They must take their interests:

(i) at the same time

(ii) by the same instrument,

(iii) with identical interests, AND

(iv) with an equal right to possess the whole property.

When a grantor failed to create a tenancy because one of these four entities was not present, a tenancy in common was created.

a. Unity of time - The interest of each joint tenant must vest at the same time.

Ex: O conveys "to A for life, then to the heirs of A and the heirs of B as joint

tenants." The heirs of A are ascertained at A's death,and the heirs of B are ascertained at B's death. Since the

holders of the remainder are ascertained at different

times, the heirs of A cannot take as joint tenants with

the heirs of B. Since a unity does not exist, they take as

tenants in common.

b. Unity of title - All joint tenants must acquire title by the same deed or will, or by a joint adverse possession. The unity of title requirement

prevents conveyances by a sole owner to himself and another as joint tenants (i.e., in a conveyance by a husband to himself and his wife as joint

tenants).

EX: A conveyance by H to "H and W as joint tenants,"

violates the unities of time and title. Because of the

common law rule that one person cannot convey to

himself, the conveyance by H to "H and W as joint

tenants" is viewed as in reality only a conveyance of

a half-interest by H to W. Since the unities of time

and title are lacking, at common law H and W held as

tenants in common.


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Exception to this example is the strawperson-a strawperson is a person not intended to have any beneficial interest in the property, who must

convey as directed by the beneficially interested parties.

A strawperson is usually a lawyer or the lawyer's secretary. Thus, where H wants to convey "to H and W as joint tenants," he can accomplish his

wishes by conveying the property to a "strawperson." After H conveys to the strawperson, the strawperson conveys to "H and W as jointtenants." The second deed complies with the four unities rule.

c. Unity of interest - Since in theory joint tenants hold but one estate as a single entity, the interest of each joint tenant must be equal in an

estate of one duration. It is not possible, for example, for O to create a joint tenancy by conveying "one-half to A and his heirs, and one-

half to B for life, A and B to hold as joint tenants." A and B would hold as tenants in common, which does not require unity of interest.

To create a joint tenancy, the shares of each joint tenant must be equal. One joint tenant

cannot be given a one-third share and the other a two-thirds share at the time of the creations of the joint tenancy.

However, after the joint tenancy is created, any joint tenant can petition a court to terminate the joint tenancy by partition sale. Upon the sale

of the property, the court may divide the sale proceeds in accordance with the proportionate considerations paid.

Property can be divided into fractional shares, one of which is owned by persons as joint tenants and the other owned by persons as tenants in

common.

EX: O conveys Blackacre as follows: "a one-half

undivided interest to H and W as joint tenants,

and a one-half interest to A." As between

themselves, H and W are joint tenants, and if

H dies first, W will own the entire one-half

interest relieved of H's participation. As

between H and W on the one and A on the other,

the parties are tenants in common. There are

no survivorship rights between A and the joint

tenants H and W.


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Unity of possession - Unity of possession requires that each joint tenant have the right to possession of the whole. After a joint tenancy is

created, the joint tenants can agree that one joint tenant has the exclusive right of possession. Such an agreement does not break the unity of

possession; the joint tenant out of possession is merely waiving his right to possession.

A joint tenancy can be created only by express words in an instrument indicating an intent to create a joint tenancy. The clearest way to create a

joint tenancy is to convey "to A and B as joint tenants with the right of survivorship, and not as tenants in common." These words will create ajoint tenancy, but

anything else--such as "to A and B as joint tenants" or "to A and B jointly"--might not create a joint tenancy. In some states, a joint tenancy can

be created only if survivorship is expressly

provided for.

"to A and B as joint tenants with the right of survivorship, and not as tenants in common."

Thejoint tenancy is a useful estate, particularly since it avoids probate. When a person dies either intestate or testate, probate proceedings

have to be opened in a local court in order to, among other things, change the title from the decedent to the new owner. Probate is

expensive and time-consuming. With a joint tenancy, there is no need to change title at a joint tenant's death, since the surviving joint tenantowns the whole by virtue of the right of survivorship.

Any joint tenant can at any time destroy the right of survivorship by severing the joint tenancy. Upon severance, the joint tenancy becomes a

tenancy in common, and the right of survivorship is destroyed. Modern law generally follows the old common law view that severance of one of

the

four unities severs the joint tenancy. There are other ways to sever the joint tenancy:

Each joint tenant has the right to convey his interest. A conveyance of the tenant's entire interest or share severs the joint tenancy with respect

to that share. Either a conveyance to a third person or to another joint tenant severs the share conveyed from the joint tenancy.

EX: A, B and C are joint tenants. On his death bed, A

conveys his share to D, thus destroying the unities

of time and title between B and C and their new co-

tenant, D. B and C remain joint tenants between

themselves, but D holds his share as a tenant in

common with them. When B subsequently dies,

C attains B's interest through right of survivorship.

C will then own a two-third interest and D a one-third


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interest as tenants in common.

NOTE: The ease of conveying away a share in a joint tenancy illustrates just how easily a joint tenancy can be severed.

A partition can destroy a joint tenancy.

Under old common law a joint tenant who wished to convert the tenancy to a tenancy in common had to convey to a strawperson, who

conveyed back to the joint tenant. The common law required that, in order to have a legal transfer, one person must convey to another person,

and not to himself; hence the joint tenant could not convey directly to himself, or the joint tenancy would be destroyed. See above on how the

joint tenant nowadays can successfully transfer an interest to himself through a straw person.

Severance of Joint Tenancies

How do you destroy the joint tenancy?- When a joint tenancy is coupled with a right of survivorship, the right of survivorship can, under certain

circumstances, be destroyed by one party acting alone (Transfer of TTIP- destroys the joint tenancy) Because survivorship rights often encumber

land, our courts require clear, unambiguous, and express language to create a joint tenancy with rights of survivorship and wil l construeinstruments in favor of tenancies in common whenever possible.

Harms v. Sprague

RULE: A joint tenancy is not severed when one joint tenant executed a mortgage on his interest in the property, since the unity of title has been

preserved. If giving a mortgage creates only a lien, then a mortgage should have the same effect on a joint tenancy as a lien created in other

ways.

The four unities (time, title, possession and interest) if severed, destroy a joint tenancy.

A mortgage does not transfer title, because the unity of title is preserved, title is not transferred, the joint tenancy is not destroyed by the

mortgage.

TENANCY BY THE ENTIRETY-HUSBAND AND WIFE

To H and W as tenants by the entirety in fee simple absolute

A tenancy by entirety is a form of concurrent ownership that can:

be created only between husband and wife, holding as one person


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The tenancy by the entirety is like the joint tenancy in that the four unities (plus a fifth--the unity of marriage) are required for itscreation, and the surviving spouse has the right of survivorship.

Husband and wife are considered in law to be one person. The fiction that husband and wife are one person reflected the realities of

English common law, where a married woman was not a legal person and her husband controlled her interests. This peculiar legal fiction of

unity of husband and wife still underlies the tenancy by the entirety and causes trouble.

Although the tenancy by the entirety resembles the joint tenancy in that the same four unities are required for its creation, it is unlike the joint

tenancy in that severance of the tenancy by one tenant is not possible. Neither tenant acting alone can sever the four unities and destroy the

right of survivorship. This is the chief difference between a tenancy by entirety and a joint tenancy.

Modern law permits husband and wife to take as tenants in common or as joint tenants. Where the conveyance is unclear,most states

thatretain the tenancy by the entirety presume a conveyance to husband and wife creates a tenancy by entirety. In some states, when the

conveyance is ambiguous, husband and wife take as tenants in common, while in other states, they take as joint tenants.

Like a joint tenancy, a tenancy by entirety can be created in either real or personal property.The courts in the majority of states hold that creditors of one spouse cannot reach the property because neither the husband nor the wife

acting along can transfer his interest. Creditors have tried to abolish the tenancy by entirety for this reason, while debtor protection groups have

tried to preserve it.

In most states, a divorce terminates the unity of husband and wife and therefore the tenancy by the entirety

The survivorship provision can be destroyed by severance of the joint tenancy, which automatically transforms it into tenancy in common.

This occurs if one joint tenant transfers away his interest in the estate, either voluntarily (i.e., giving it to his heirs) or involuntarily (i.e., by

execution by his creditors).

COURTS commonly state that partition is available to tenants in common and joint tenants as a matter of right

Rights and responsibilities of cotenants in the absence of an agreement

3 default rules of actions between cotenants:


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1. Accounting- an action in which one cotenant (typically a cotenant that is not in possession of the land) seeks to compel another cotenant(typically the cotenant in possession) to share benefits obtained from the leasing, exploitation, or use of the property (e.g. rents, profits,

or proceeds). Example- cutting timber, mining, oil and gas (constitutes a profit v. leasing) livestock could fall under personalty not realty.

Calculating Net Proceeds- Gross Revenues-Operating Costs = Net proceeds

Divided pro rata among the co-tenants

Raw value v. Process Value-

2. Contribution- an action in which one cotenant seeks reimbursement from the other cotenant for a pro rate share of expenses that thecomplaining cotenant has paid (e.g. taxes, mortgage principal & interest, insurance)

Not reimbursable-

repairs and maintenance improvements- have to have actually added value (or award that co-tenant)

3. Final Settlement on Sale or Partition- A cotenant can bring an action for an accounting or for contribution without terminating the co-tenancy.

Repairs and maintenance Rental or other proceeds not accounted for

Carrying costs- repair (lack of functionality is repaired), maintain (so it doesnt fall into disrepair) and improve (upgrade the value of something)

Type and timing will change

Tenants in Common Joint Tenancy Tenants by the Entirety

Possession x x x

Interest x xTime x x

Title x x

Marriage x

When one co tenant ousted the other there is no obligation on the other tenant

Absent and agreement


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Smith v. Rucker

Whether those survivorship rights are paired with a tenancy in common and therefore indestructible or whether they are paired with a joint

tenancy, in which case the property would be subject to partition at the whim of either party.

The deed in the instant case does not contain the language suggested by section of the SC code, it does satisfy the four unities required to create

a joint tenancy:both Husband and Wife have the same interest created by the same conveyance which commenced at the same time and they hold the property

in undivided possession.

Wifes deed created a joint tenancy by satisfying the four unities required under common law and by unambiguously creating a right of

survivorship.

United States v. Craft

New interpretation of the property rights of an individual that holds property as tenancy by the entirety is subject to a Federal tax lien.

The court puts the individual rights in the real property under a microscope, and lists a number of rights one spouse has in real property held by

tenants by the entirety. These are as follows:

The right to use the property; The right to exclude third parties;The right to share in income produced; The right of survivorship; The right to become a tenant in common upon divorce; The right to sell the property with spousal consent; and The right to encumber the property with spousal consent.

Therefore the Federal Tax Lien does attach to the taxpayers interest in entireties property.

RULES GOVERNING THE LEGAL RELATIONSHIP BETWEEN COTENANTS

Schmidt v. Wittinger-Donald, Keith and Albert Wittinger are brothers who inherited from their parents undivided equal interests in farmland-

Albert was sued by his brothers and Schmidt for partition sale of the property.

Issue:

Whether the court could force a partition by sale


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Partition action:

co-owner can seek to partition property thereby terminates a co-ownership. The idea that the property is unique.

By sale- a judicial sale of the entire parcel, followed by a distribution of the sale proceeds to each cotenant in accordance with eachcotenants share.

In kind- is physical division of the property; the court divides the property into separate tracts, and vests individual title to a tract in eachof the cotenants based upon each cotenants respective shares.

Owelty- a sum of money that balances the parties respective shares (can be used to help dictate a partition in kind- this payment is made to

adjust)

Holding- the trial courts findings are not clearly erroneous. The Ps have met their burden of proving that a partition in kind could not be made

without great prejudice to the owners.

Costs to partition to the existing fence was high- rivers meanders through the property Building and maintaining of fences by adjoining owners Albert is hostile towards others Not all tracts had a water supply Property being operated and farmed in a sufficient manner Current house that is built is on the premises- section line 5-8 cannot be partitioned. Value of the Wittengers share would be less than the whole Partition in kind would result in great prejudice to the owners, that is why the partition by sale was ordered by the court.

Joint tenant is liable to account to his cotenants for receiving more than a proportionate share of the rents and profits.

Estevez v. Estevez

Ouster-

Need to show physical interference- i.e. change the locks

Reflect a clear repudiation of the other co-tenants claim of title


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1) on a sale of commonly owned property, an owner who has paid less than his pro-rata share of operating and maintenance expenses ofthe property, must account to the co-owner who has contributed more than his pro-rata share, and that is true even if the former had

been out of possession and the latter in possession of the property.

2) the fact that one tenant in common occupies the property and the other does not, imposes no obligation on the former to make anycontribution to the latter. All tenants in common have a right to occupy all of the property and if one chooses not to do so, that doesnot give him the right to impose an occupancy charge on the other.

3) when on a final accounting following sale, the tenant who had been in sole possession of the property demands contribution towardoperating and maintenance expenses from his co-owner, fairness and equity dictate that the one seeking that contribution allow a

corresponding credit for the value of his sole occupancy of the premises.

Marital Interests

Property interests that arise out of a marital relationship. One spouse can claim can claim property interest in land or other assets that

otherwise belong to the other spouse individually (or are titled in the other spouses name).

a. Jure Uxoris- is aLatinterm that means "by right of his wife" or "in right of a wife". It is commonly used to refer to a title held by a man whose

wife holds it in her own right. In other words, he acquired the title simply by being her husband.

b. Curtesy- A husbands entitlement to a life estate that his wife possessed at her death is curtesy right. The couple must have a living child

capable of inheriting his/ her mothers estate. The common law provides that upon marriage, a husband acquires a right, under a freehold

estate, to the use and profits of his wifes lands. Upon the birth of a child capable of inheriting the land, a husband acquires a life estate or

property interest. The husband can sell or mortgage the land and it can satisfy the claims of his creditors.

Curtesy initiate is a husbands right of curtesy before his wifes death. It is the right created upon the birth of the couples first child. Curtesy consummate is a husbands right of curtesy after his wifes death. Upon the death of the wife, curtesy initiate becomes curtesy

consummate.

c. Dower- is a wifes interest in her husbands property upon his death. It is a portion of a deceased husbands real property, usually one-third,

that a widow is legally entitled to use during her lifetime to support herself and their children. A wife may claim the dower if her husband dies

without a will or if she dissents from the will
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The main elements of a dower claim are as follows:

A valid marriage; A sole and beneficial seisin of property by the deceased spouse at any time during the marriage; Living issue(s) during the marriage; and The death of a spouse leaving the surviving spouse to claim dower.

ELECTIVE SHARE- The Modern Successor of the Estates of Dower and Curtesy

Dower and Curtesy are now abolished- but these estates did serve an important purpose---to ensure that ones spouses death did not leave the

surviving spouse without any property on which to sustain himself or herself.

d. Elective Share- An elective share is a term used inAmericanlaw relating toinheritance, which describes a proportion of anestatewhich the

surviving spouse of the deceased may claim in place of what they were left in the decedent'swill. It may also be called a widow's share, statutory

share, election against the will, or forced share.

Typically applies only to property that would pass by probate transfer.

Example:

"A" and "B" are both recent widowers. Husband "A" inherited $100,000 from his wife. Husband "B" was completely cut out of his wife's will, but

after claiming anelective shareof his wife's estate (30% of the elective estate), he too received $100,000 from his wife's estate.

e. Community Property- In a community property jurisdiction, most property acquired during themarriage(except for gifts or inheritances) is

owned jointly by both spouses and is divided upondivorce,annulmentor death.Joint ownershipis automatically presumed by law in the

absence of specific evidence that would point to a contrary conclusion for a particular piece of property.

f. Equitable Distribution- Division of property, also known as equitable distribution, is a judicial division of property rights and obligationsbetween spouses duringdivorce. It may be done by agreement, through a property settlement, or by judicial decree.

Distribution of property is the division, due to a death or thedissolutionof a marriage, ofpropertywhich was owned by the deceased, or

acquired during the course of themarriage.

In Re Marriage of Graham page 387

Wife supported her husband financially while he attended school. The spouses filed for divorce and the issue became whether the husbands

degree was marital property that could be divided.
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Rule of Law. An educational degree is not encompassed by even a broad interpretation of property.

An educational degree is not encompassed by even a broad interpretation of property. It does not have any of the characteristics of theconcept of property.

An educational degree cannot be transferred. It has no exchange value on the open market and terminates upon death.OBrien v. OBrien page 391

A spouse sought to have a professional license declared as marital property, thus subject to equitable distribution.

Rule of Law. An interest in a professional or professional career potential is marital property, which may be represented by direct or indirect

contributions of the non-title holding spouse.

Marital property is subject to equitable distribution. It is property acquired by either spouse during the marriage regardless of the formin which title is held.

An interest in a professional or professional career potential is marital property, which may be represented by direct or indirectcontributions of the non-title holding spouse.

Mahoney v. Mahoney

Melvin and June were married. Melvin went to school to get an MBA. During this time, June was the sole income earner for the family.

The Court created the concept ofreimbursement alimonyas an equity device. Reimbursement alimonygives a spouse half of all financial contributions made towards one spouse's education;

including tuition, books, household expenses, etc.

There is an expectation that they would get some benefit for supporting their spouse's education. Reimbursement alimonyis not to be granted in every case. It is only for monetary contributions made with the mutual

and shared expectation that both parties to the marriage will derive increased income and material benefits from thedegree.

RULE- a degree is notmarital property. There are three reasons for this:o The value of the degree is speculative,

How much money the degree is worth depends on what particular job a person takes later in life. That could be vastlydifferent.

Working for a law firm or a non-profit makes a big difference after law school.o A degree is personal to the holder,

June didn't do the work to get the degree, only Melvin.


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o The degree produces income after the period of marital property has ended. Melvin shouldn't have to pay June for income he earns afterthe divorce.

Chapter 7

The Law of Landlord and Tenant

The Nature of the Lease and the Covenant of Quiet Enjoyment

1. The Dual Nature of Modern LeasesLease is a conveyance (contract) in which the owner of real estate transfers the right to immediate and exclusive possession of specific

real property either for a fixed period of time or for as long as the landlord and tenant desire.

Privity of estate

Privity of contract

Need to know on the first day when the term will end. The lease will end, it will expire. The person who holds the right to possession has an estate- a recognizable possessory interest in the land. When the lease terminates Why do you have a lease? Dominion and control over a specific area or property

Need contract rules added onto my conveyance model. Which gives us the modern residential lease.

Non-Possessory Interest (v. Leases)

Profits- A right to enter onto and remove some part of land or product of land possessed by anotherEx: right to cut timber, hunt on property, extract minerals, oil and gases

Licenses- it is revocable grant of permission to go onto land in the possession of another for a specific purpose

Easement- non-possessory right it is revocable or irrevocable permitting holder to enter onto and make a particular use of land in

possession of another.


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Cook v. University Plaza

The plaintiffs and University Plaza entered into a Residence Hall Contract Agreement that stipulated that the parties did not intend a

landlord-tenant relationship. The defendant reserved the right to require a resident to move from room to room.

Issue:Whether a K is a lease or a license is not to be determined from the language that the parties choose to call it but from the legal effect of

its provision.

Is a contractual agreement between students and a university dormitory a lease or a license?

Rule: The essence of a lease is transfer of possession, while a license is an agreement which merely entitles one party to use property

subject to the management and control of the other party. Therefore, an agreement which allows a dormitory to move students from

room to room at its discretion is a license because it fails to pass a possessory (exclude, possess, use, transfer) interest in specific

property.

Rule:

An instrument which merely gives to another the right to use premises for a specific purpose; the owner of the premises retaining

the possession and control of the premises, confers no interest in the land and is not a lease but a mere license.

Opportunity Costs-

Status is what we used to rely on- we are now going over rights with a contract

Equity- it would be inequitable not to permit the student back because of her status. She had legally enforceable rights as long as shewas paying to use the premises.

Look at the specific rights


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Types of Leasehold Estates

A leasehold estate is an estate in real property of a lessee, created by a lease

Three types of leasehold estates: tenancy for years, tenancy at will, and a periodic tenancy

Tenancy for term (years) -- This has a stated, definite maximum duration. It cannot last longer than this specified period, unless it is renewed.

(No notice to terminate for lessee is necessary; lessor cannot terminate.) Expires automatically

Fixed in advance

Computed using an agreed upon formula

Tenancy at will-without a fixed duration and without defined renewable periods

1. A tenancy for an indefinite, uncertain period of time2. Either party can terminate the lease with reasonable warning- immediately3. Any unclear, ambiguous tenancy defaults to a tenancy at will4. There is no right to renewal

A tenancy at will is broken, again by operation of law, if the:

Tenant commits waste against the property;

Tenant attempts to assign the tenancy;

Tenant uses the property to operate a criminal enterprise;

Landlord transfers his/her interest in the property;

Landlord leases the property to another person;

Tenant or landlord dies.

Periodic tenancy- This is a tenancy which is renewed automatically at the end of each period.

continues from month to month, or year to year, unless lease is terminated by proper notice. Proper notice

o Common law: The amount of notice must be the same as the period (i.e., for a month tenancy, 30 days is required).o Modern rule: By statute, many states require only 30 days notice, regardless of the period involved.

Renewal: The lease automatically renews unless a party gives notice.
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Tenancy at Sufferance- (sometimes called a holdover tenancy)

exists when a tenant remains in possession of a property after the expiration of a lease until the landlord acts to eject the tenant from the property.

Although the tenant is technically a trespasser at this point, and possession of this type is not a true estate in land, authorities recognize the

condition in order to hold the tenant liable for rent. The landlord may evict such a tenant at any time, and without notice.

The landlord may also impose a new lease on the holdover tenant.

For a residential tenancy, this new tenancy is month to month. For a commercial tenancy of more than a year, the new tenancy is year to year; otherwise it is the same period as the period before the original lease expired. In either case, the landlord can raise the rent, so long as the landlord has told the tenant of the higher rent before the expiration of the

original lease.

David Properties, Inc. v. Selk

Selk- is the seller and tenant David Properties was the buyer and landlord

Issue: Whether the D, having written those letters to the P setting the rent at $300 per month if the P continued to live on the property, and

having received no reply whatsoever from the P, who continued to live there, is entitled to that much as rent?

HELD- that when a landlord demands different rent for continued possession of property after expiration of lease and tenant receives demand

and thereafter continues on in possession without protest, the tenant impliedly agrees to pay the rent demanded.

The Transferability of the Leasehold Estate

Lease- entitles the holder to immediate and exclusive possession of specific land for a specified period of time or for as long

A tenant may conclude that she no longer needs possession of the leased premises.

1. Residential- Because the tenant has to move suddenly- (job transfer)2. Commercial- business failed or very success and they have outgrown their current space.

Tenant wishes to transfer its leasehold estate- its right to possession- to another person who wants it.
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General policy is in favor or alienability for the tenant to transfer its rights.

Two types:

Assignment-the tenant transfers its entire remaining interest (the right to possession for the full balance for the lease term)o Part Assignmento Full Assignment

Sublease- tenant transfers less than its entire remaining interest (creates an entirely new landlord-tenant relationship between thesublessor (original tenant) and the sublessee (the original tenant)

Julian v. Christopher (1990)

Tenants purchased a tavern and restaurant business, as well as rented the business premises from landlord, Guy D. Christopher.

The lease stated in clause ten that the premises, consisting of both the tavern and an upstairs apartment, could not be assigned or sublet

"without the prior written consent of the landlord."

The circuit judge noted: "If you don't have the words that consent:

will not be unreasonably withheld, then the landlord can withhold his consent for a good reason, a bad reason, or no reason at all in the context of a commercial lease, which is what we're dealing with."

Issue : Whether the Klawans holding should be modified in light of the changes that have occurred since that decision?

Get from the powerpoint

The Klawans opinion cited Restatement of Property 410 as authority for its holding. The current Restatement (Second) of Property 15.2

rejects the Klawans doctrine and now takes the position that:

A restraint on alienation without the consent of the landlord of the tenant's interest in the leased property is valid, but the landlord's

consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the

landlord an absolute right to withhold consent.

Since Klawans, the trend has been in the opposite direction. "The modern trend is to impose a standard of reasonableness on the landlord in

withholding consent to a sublease unless the lease expressly states otherwise."


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Probably the most often used clause is a "silent consent" clause similar to the provision in the instant case, which provides that the premises

may not be assigned or sublet without the written consent of the lessor.

In a "silent consent" clause requiring a landlord's consent to assign or sublease, there is no standard governing the landlord's decision. Courts

must insert a standard.

The choice is usually between

1) requiring the landlord to act reasonably when withholding consent, or

2) permitting the landlord to act arbitrarily and capriciously in withholding consent.

Public policy- requires that when a lease gives the landlord the right to withhold consent to a sublease or assignment, the landlord should act

reasonably, and the courts ought not to imply a right to act arbitrarily or capriciously. If a landlord is allowed to arbitrarily refuse consent to an

assignment or sublease, for what in effect is no reason at all, that would virtually nullify any right to assign or sublease.

There are two public policy reasons why the law enunciated in Klawans should now be changed.

Against restraints on alienation implies a covenant of good faith and fair dealing in every contract.

Because there is a public policy against restraints on alienation, if a lease is silent on the subject, a tenant may freely sublease or assign.

Restraints on alienation are permitted in leases, but are looked upon with disfavor and are strictly construed.

If a clause in a lease is susceptible of two interpretations, public policy favors the interpretation least restrictive of the right to alienate freely.

Interpreting a "silent consent" clause so that it only prohibits subleases or assignments when a landlord's refusal to consent is reasonable,

would be the interpretation imposing the least restraint on alienation and most in accord with public policy.

Examples of reasonable objections: sprankling

financial irresponsibility or instability of the transferee unsuitability or incompatibility of the intended use of the property by the transferee nature of the proposed use legality of proposed use


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need to alter the premises whether use will compete with landlords business or other existing tenants

If the reasons for withholding consent have nothing to do with the intended transferee or the transferee's use of the property, the

motivation may be suspect.

Alleged in this case, the refusal to consent was solely for the purpose of securing a rent increase, such refusal would be unreasonable unless

the new subtenant would necessitate additional expenditures by, or increased economic risk to, the landlord.

Ernst v. Conditt.

The Complainants, Mr. and Mrs. Ernst (Complaintants), approved a modification to a lease that allowed the Defendant, Conditt (Defendant), to

sublease the premises and left the lessee personally liable. Defendant ceased paying rent and Complainants sued to determine whether the

instrument was a sublease or assignment.

Rule. The words used in an instrument are not conclusive, rather it is the intentions of the parties that govern whether the instrument is a

sublease or assignment.

Issue.

Whether the transfer of the leasehold interest in the premises from Rogers is an assignment of the lease or a sublease?

Held.

Affirmed, the use of the word sublet is not conclusive of the construction to use on the instrument. Rather the instrument was an assignment.

A sublease grants the sublessee an interest in the lease premises with a reversionary interest remaining with the lessee.

An assignment conveys the whole term, leaving no interest or reversionary interest in the lessee.

The Common law rule is if the instrument purports to transfer the lessees estate for the entire remainder of his term, it is an assignment,

regardless of its form or the parties intentions.

This current agreement, despite its terms, does not leave the lessee with a right to re-enter or a reversionary interest, thus it is an assignment.


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Dumpors Case

The Rule in Dumpor's Case is acommon lawrule ofproperty lawfirst set forth by SirEdward Cokein1578. In its most basic form, it states that

once alandlordhas consented to anassignmentof atenant's interest in aleasehold estate, he implicitly consents to all future assignments by

the tenant.

DVM Co. v. BrickerArizona Souvenirs case

Tenant shall not use or permit the premises to be used for any other purpose or purposes without the written consent of the landlord first had

and obtained.

Held.

After trial to the court without a jury, the court held that while selling T-shirts with some identification of Arizona, Phoenix, cactus or

such things did not violate the use clause, the sale of T-shirts with movie, TV or cartoon personality imprints did violate the lease.

However, the court also found:

The breach of the lease agreement for the Basket House was not sufficiently material in nature to warrant recovery and possession ofthe subject premises under the provisions of A.R.S. 33-361 or the lease agreement.

The trial court awarded DVM attorney's fees, but refused to terminate the lease.o As long as a tenant is in possession of the property, the landlord should not be forced, pending determination of the matter, to

refuse rental payments by a tenant in possession. We hold that under this specific fact situation, accepting rental payments

during the pendency of this action does not result in a waiver of a claim to forfeiture.

The Landlords Responsibilities Related to the Condition of the Premises

Traditional view of leases as conveyances- landlords primary responsibility was to provide tenant with the legal right to possession and to not

interfere with that possession during the term of the lease.

Caveat lease- let the buyer beware

Limited common law circumstances of landlords obligations

Property suffered latent defects which landlord knew or should have known
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Maintaining the physical condition of common areas Agreed to perform any repairs, the landlord was obligated to perform that agreement Lease was a short term- for the rental of furnished premises- landlord responsible for physical condition of the premises Building under new construction-Lease contained an implied covenant by the landlord that it would be fit for purpose for which the

tenant entered into the lease

Tenant cannot withhold rent for any of these circumstances unless: (Common Law)

1. The lease specifically provided the tenant with the termination right2. Tenant had a duty to pay rent3. The landlords breach resulted in conditions that were so serious as to justify a constructive eviction

The Covenant of Quiet Enjoyment and Constructive Eviction

Implied Covenant of Quiet Enjoyment- default law- despite of the fact the parties did not mutually assent to it.

Breach of Quiet Enjoyment- without a physical ouster1. Active interference with its possession ( or the landlords inaction in relation to a legal duty owed)2. The interference is attributable to the landlord, landlords agent or title holder- cannot be from a third party must be a direct action by

the landlord breaching the covenant of quiet enjoyment

3. Interferes with the tenants bargained for possession- tenant promptly departs the premises4. Tenant leaving constitutes a constructive possession terminating the leasehold and any liability for future rent.

American Rule-

Legal possession Tenant must sue holdover tenant to gain actual possession

English Rule

Physical possession Lanlord must sue holdover tenant to deliver actual possession

Constructive eviction is a term used in thelawofreal propertyto describe a circumstance in which alandlordeither does something or fails to

do something that he has a legal duty to provide (e.g. the landlord refuses to provide heat or water to the apartment), rendering the property

uninhabitable. Atenantwho is constructively evicted may terminate the lease and seekdamages.
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To maintain an action for damages, the tenant must show that:

the uninhabitable conditions (substantial interferences) were a result of the landlord's actions (not the actions of some third party) and that the tenant vacated the premises in a reasonable time and relieved of obligation to pay future rent

A tenant who suffers from a constructive eviction can claim all of the legal remedies available to a tenant who was actually told to leave.

Need to remember:

1. a physical interference cannot breach the covenant of quiet enjoyment unless it is attributable to the landlord, the landlords agent, or aparamount title holder.

2. 3rd parties- cannot breach this covenant (duty to act)3. Not all interferences will justify a constructive eviction

a. Must be intentional- by conduct (not all courts)b. Substantial- alwaysc. Permanent (not all courts)

4. Tenants possession, use and enjoyment of the premisesFidelity Mutual Life Ins. Co v. Kaminsky- OBGYN with protesters

Issue:

Whether there is sufficient evidence to supports the jurys findings that the landlord and appellant, Fidelity Mutual Life Insurance Co,

constructively evicted the tenant, Kaminsky by breaching the express covenant of quiet enjoyment contained in the parties lease.

Constructive eviction- occurs when the tenant leaves the leased premises due to conduct by the landlord which materially interferes with the

tenants beneficial use of the premises.

Rule: that a landlord is not responsible for the actions of third parties, applies only when the landlord does not permit the third party to act, BUT

Ps lack of action or inaction when put on notice constitutes a violation to this rule

From Caveat Lessee to the Implied Warranty of Habitability

Commercial transactions- the caveat lessee rule is normally used.


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Urban residential (single unit housing) replaced rural agricultural tenancy

The Development of Housing Codes- 1867 (NY Tenement House of Law)

1. Structural integrity- walls, roofs, floors2. Nonstructural fixtures- toilets, sinks, door and door locks, windows and window locks3. Services- heat, water, sewer, garbage, elevators4. Occupancy- limiting numbers of occupants per dwelling

Problem:

Were not universal Tenants who complained their leases were not renewed Enforcement was sporadic Only could complain to the public official- not private tenant Housing offices- understaffed and overworked, poorly trained and corrupt

Exceptions:

Short term lease Premises conditions were fraudulently misrepresented Latent defects

Outline Property for Depot

Documents

Transcript of Outline Property for Depot