Property I Flashcards
(196 cards)
1
Q
Eight Property Law Questions:
A
- Is there a “property interest” at issue?
- If it is property, what type of property interest is it?
- How is this type of property interest created or acquired?
- Who “owns” the property interest? How are competing ownership claims decided?
- What “property rights” does ownership in this property entail, and with what limits/scope and duties?
- What is required to make a valid transfer of this property interest?
- How long does the property interest last? How can the property interest be terminated?
- How are property rights in this kind of property enforced?
2
Q
Property Law Perspectives
A
- Efficient allocator of resources
- Guardian of individual liberty
- Reward for labor (usually subsumed in #1 or #2)
- Socio-Political Structure
- Personhood and Community
- Ecology/Habitat
- Sacred
- Progressive Property
- Others
3
Q
Three Big Sticks in the Bundle
A
Right to refuse
Right to possess/use
Right to alienate
4
Q
Jacque v. Steenberg Homes
A
Mobile home trespassing case
Nominal damages can have punitive damages on intentional trespass.
Need to be able to defend the right to exclude with consequences
5
Q
State v. Shack
A
Men denied access to bring info to migrant workers
“A man’s right in his real property is of course not absolute.”
Necessity may justify entry upon lands of another
6
Q
Reliance Interest in Property
A
If somebody owns some property and then they do something, that can change property interest on other people.
People may rely on something others do which may change the property right.
Ie. inviting migrant workers to live on land CHANGED the property rights
However, union had no reliance interest in Local 1330 vs US Steel
7
Q
Ratione Soli and “Constructive Possession”
A
If I own the land, I have a constructive right to own anything on the land.
Land acts an extension of the owner for “first in time possession”
Applies as pre-possessory right to the stuff on land (ie. animals who wander on)
ie. Trespasser cannot come onto land to take animal even if they got to it first.
8
Q
Pierson v. Post
A
Pre-possessory right to own/Possession ownership distinction made
9
Q
Popov v. Hayashi
A
Baseball case
“Interference” with an attempt to acquire
Popov didn’t have possession but had the right to possession
10
Q
Johnson v. M’Intosh
A
Those who conquered the land have possession.
11
Q
“Rule of capture”: Pursuer has possession/occupancy (and thus ownership) if:
A
- Intent to appropriate, and
- Conduct: Deprive it of its natural liberty, and Bring it within certain control
Shooting may count if it dies
12
Q
Principle of Derivative Title
A
One cannot transfer greater title than one possesses
Also, subordinate rights to possession if not from a proper transferor, or wrongful holder
13
Q
Simplified rules for interpreting inter vivos grants and wills
A
- Apply plain meaning of language in context to effectuate grantor’s intent (=treat as unambiguous)
- If ambiguous: Admit extrinsic evidence to clarify grantor’s intent
- If still ambiguous: Apply other specific statutory and or judicial rules of construction.
- Unless contrary to other rules:
i. Unreasonable restraints on alienation
ii. Anti-discrimination law
iii. Etc.
14
Q
Claim of Title
A
Not based on a defective document
15
Q
Color of Title
A
Based on a defective document
Need all of the AP elements for at least part of the land
Get part of land for which all AP elements met
Still a trespasser
“Color of title” is any semblance of a title by which extent of ownership can be ascertained.
16
Q
Two land applications for AP
A
Whole Parcel
Border Disputes
17
Q
AP Six Elements
A
- Actual Entry/Possession
- Exclusive
- Open & Notorious
- Adverse Possession
- Under a Claim of Right
- Continuous Possession […for the Statutory Period]
18
Q
Actual Entry/Possession
A
Objective standard: Looking at behavior and conduct. Usual management of similar lands by owners. Possessed in a fashion as we would expect from a typical or reasonable owner of similar land.
Not reasonable person standard, reasonable owner of this land in this place.
Have to analyze this element for different parts over different periods of time. Must analyze “actual possession” separately on each part.
19
Q
Exclusive
A
Is the title owner exercising their right to exclude?
Person claiming by adverse possession is the only one using as an owner:
Must exclude true owner and any other non-owners attempting to exercise possession
If possessor allows someone else to use, that doesn’t defeat exclusivity because possessor is acting like a true owner.
For this application of AP, must be exclusive possession claim, not exclusive use.
Concurrent ownership is also possibly if agreed on and coordinated.
20
Q
Open & Notorious
A
Objective standard: Possession must be visible and obvious to a typical reasonable owner of that kind of land in that area.
Focus is on the possessor’s actions from the standpoint of a typical/reasonable owner, not on the true owner’s knowledge about the possession.
Cave example, not open and notorious if out of sight, entrance on another land.
21
Q
Adverse Possession
A
No permission to be there. Their possession is adverse to owner’s claim to ownership.
Acquiescence does NOT constitute permission
Need intent to give permission. Must know you owned the property for instance.
22
Q
Under a Claim of Right
A
Jurisdictional split:
Maj: Objective standard, state of mind is irrelevant, court uses objective elements and skip this step.
Min: Innocent trespasser/Good faith. Mistaken possession, must think that it is their own land but they’re wrong.
Extreme Min: “Intent to claim”, aggressive trespasser, bad faith. Knowing and intentional possession; possessor must think does not own land to meet this standard.
23
Q
Continuous Possession […for the Statutory Period]
A
Time and frequency of possession
As continuous to possession as you would expect a true owner to do, given the “character, location, and nature of the land”
Same objective standard as “actual” but focused on frequency of possession rather than nature of possession.
24
Q
For the Statutory Period (AP)
A
Set by relevant statute of limitations for bringing and Action for Ejectment or other action to regain possession.
Wide range of times: 3, 5, 20 etc.
Question usually explicitly gives this fact
25
Quiet Title Actions
AP may want to prove they have good title (ie to sell or get loan)
To prove their title, bring a “quiet title” action against the person with “record title” and all others who might own an interest
Court declares who owner is; it does not transfer the interest
Winner can record the judgment in the public records to demonstrate ownership to others
26
AP Policy Justifications
Owner sleeping on her rights
Emphasizes true owner’s conduct
Possessor: earning right to property/reliance
Emphasizes trespasser’s conduct -- ie Carol Rose
Public Interest
Problem of lost evidence
Value in “quieting titles”
= Efficient way to clear title and make a market in land function
27
Mullis v. Winchester
AP for bad title, wood chopping wasn't constant but was continuous
Extreme Min jurisdiction for Claim of Right
Adverse and Claim of Right
28
Norman v Allison
“Merely building a fence” is proof it was not hostile
Claim of Title
Boundary Conflict
29
Stump v. Whibco
Tacking AP
Continuous because all AP’s worked together
Not Open and Notorious though because the fence was unmaintained until a point within SoL.
30
CONSTRUCTIVE POSSESSION:
1. Adverse possessor who has color of title
2. And possesses elements for some part of the property described in the fault deed/instrument
3. Then deemed to have constructive possession of the rest of the land described in the faulty instrument
4. Her “constructive possession” claim will be stronger than most other claims (except another AP for some part of that property)
31
When to apply Color of Title (rule)
Only apply when adverse possessor
1. Has a faulty instrument and
2. Hasn’t possessed all the property described in the faulty instrument
(Otherwise, adverse possessor doesn’t need to rely on constructive possession from Color of Title claim)
Color of Title is NOT an AP element; apply if relevant AFTER going through regular Claim of Title AP analysis for land AP possessed
32
Tacking
Connecting pieces of ownership claims
Privity Requirement:
In order to tack, there has to be a transfer of that property interest to the second owner that was a standard way to transfer property.
Ie. no abandonment and finding it, no forcing out
33
Owner’s Disabilities (AP)
If the owner has a disability at the start of the AP period, it tolls the SoL until the disability ends. Then SoL either clock starts to run from where it left off or an additional statute might provide for specific SoL after disability has ended.
34
Traditional Disabilities (for AP)
Minor
Military overseas
Mental disability
Some states include imprisonment
35
Fee Simple (what is it how does it work, and made)
Estate in the entirety. No future interest created.
| To A, and his heirs (or just to A)
36
Rule of Construction for Fee Simple vs Life Estate
If ambiguous, rule of construction favors Fee Simple
37
Fee Tail
To A and the heirs of his body = Fee Tail or
To A and the male heirs of his body = Fee Tail Male
First in lines get Life Estate which goes on to the next after death. Series of Life Estates by specific heirs.
Heirs do get a future interest here, as estate holder can’t sell as FSA, only LE
38
Life Estate (and per autre vie)
Lifetime conveyance, returns to FSA owner after death
If transferred to someone, they only keep interest until the INITIAL PERSON dies. Life ownership only for another’s life. Pur autre vie
To X for life
39
Constraints faced by life tenant with legal life estate
Under Principle of Derivative title, can only unilaterally transfer LE, not FS.
Ability to transfer long-term lease
Ability to hypothecate/mortgage the property
Mortgage is a loan which is secured by property in case the borrower stops paying.
40
When courts can force a sale without consent of future interest holder
Can force future interest holders to sell IF:
1. Must show necessity
2. And for the best interest of all parties
41
Words of Purchase and (Words of Limitation):
“To A (and his heirs)”
42
White v Brown
“To live in” is ambiguous.
Use rules of construction
A will transfers all interest unless contrary intention expressed. Avoid “partial intestacy” unless clear intention expressed
43
Baker v Wheedon
Right to sell if necessary and best interest. Court remanded to find best interest.
44
If a property is mortgaged then there’s a LE and remainder holders, and the mortgage isn’t paid, who owes principal and interest on loan?
LE owns interest (current charges)
| Future interest holder owes principal
45
Fee Simple Determinable
1. Present interest created
2. With a condition
3. Future interest held by grantor
4. Condition introduced by “durational language”
Immediately defeased by operation of law
Creates Possibility of reverter
46
“durational language” examples
So long as
While
During the time…
Until…
47
Fee Simple Subject to Condition Subsequent (FS/CS)
1. Present interest
2. With a condition
3. Future interest held by grantor
4. Condition not introduced by “durational language”
Creates right of re-entry
Note: Some states have specific statutes of limitation on when a holder of RE/PT must take action
48
Non-durational language examples
Provided that;
However;
But if;
49
Fee Simple Subject to Executory Interest
1. Present interest created
2. With a condition
3. Future interest held by grantee
4. Doesn’t matter whether condition introduced by “durational language” or not.
Future Interest: Executory interest
Immediate defeasement like FSD
50
Condition precedent
Condition that operates prior to someone getting the right to possess (so can make a remainder contingent)
51
Condition subsequent
A condition that operates after someone has the right to possess that could lead to divestment (so can make an interest defeasible)
52
Condition quirks
Location in the grant is not important, it’s how it operates is what matters.
A single condition can be both a precedent and subsequent
Ie. (To A for life, then B while she is a judge, then to C and her heirs)
53
Rule of Construction FSD vs FS/CS
If ambiguous court prefers FS/CS (not applied in Mahrenholz)
54
Defeasible estates create which future interests
FSD: Possibility of reverter (automatic)
FS/CS: Right of entry (must reclaim)
FS/EI: Reversion for grantor (if not immediate FSA), creates Executory interest future interest (automatic transfer when condition broken)
55
Four contexts where legal limitations on conditions:
1. Unreasonable restraints on alienation through common law = Problem of “Dead Hand”
2. Constraints on infinite conditions (to some extent in Rule Against Perpetuities)
3. Discriminatory Conditions (mostly through statutes)
4. Conditions interfering with other important public policies (eg. family rights)
56
Direct total restraint on alienation rule
Rule: Direct total restraints on alienation on Fee simples are VOID but can be enforceable against “lesser interests” (eg. life estates or leasehold estates)
57
Direct partial restraint ALBY balancing test factors
1. Purpose: More socially valuable or less?
2. Scope: Extent on impact of alienation usually measured by impact on marketability
3. Duration: Longer or shorter
4. Consideration: If purchased was it bargained for
5. Notice: Did party subject to restriction get notice before they acquire?
58
Direct total vs direct partial
examples:
1. Can't sell
2. Can't mortgage within lifetime
Both are about alienation, not use which is partial
59
Normal Remedy for Unlawful Conditions:
Remove ONLY the invalid conditions
60
Indirect Restraints on Alienation
Often regarding the use of property:
"To A and her heirs so long as the property is used for residential purposes."
But can be condition on any property right that affects alienation:
"To X and his heirs so long as allow Democrats into the house"
61
Alternative Tests for Indirect Restriction of Alienation: MAJ rule
Preiskorn v. Maloof:
1. Is the condition a restraint on alienation or merely a restriction on use [or some other property right]? (If merely restriction on use [or other property right] then OK)
2. If a restraint on alienation in effect, then apply Alby factors
62
Alternative Tests for Indirect Restriction of Alienation: MIN rule
```
Falls City v. Missouri Pacific Railroad:
Use of restrictions are valid and enforceable unless have practical effect of “affecting marketability adversely” by unreasonably limiting the class of persons to whom it may be alienated.
```
63
Process for considering conditions in classifying interests
1. Classify what interests are created by the grant using the rules and char. NB: grant may be ambiguous.
2. Interpret the condition(s): make sure you know what they mean, how they operate, and what interest(s) and property right(s) they modify.
3. Consider if condition(s) enforceable or not.
If so, consider if other facts will violate or not
If not, then strike the condition and reclassify interests
If uncertain, you may need to argue along two paths in the alternative (if condition is enforceable and if condition is not; if enforceable was it violated or not)
64
Legal Restraints on Discriminatory Conditions
Yes, under federal Fair Housing Act and also often under state and local laws.
65
Defeasible Estates and Adverse Possession
AP is a doctrine that can come into play in connection with many other rules and doctrines
Comes into play whenever there’s a trespasser on land who might fulfill the AP elements.
66
Reversion (and three situations when to apply)
The default name for any other interest created in (or retained by) Grantor that is not a PR or RE/PT
Three situations in which need to imply a reversion:
1. Grantor doesn’t give away all of their interest (to A for life)
2. Grantor only creates future interests that are “contingent” in some way (eg. contingent remainder or executory interest)
3. If there is a necessary logical gap in time between rights to possess
67
Remainder vs Executory Interest Rule
To be a Remainder:
1. The immediately preceding estate must have a natural end, AND
2. The future interest under consideration must be CAPABLE (in principle) of becoming possessory immediately at the end of the preceding estate (even if it doesn’t, in fact, do so)
Otherwise it’s an executory interest
68
Vested Remainder vs Contingent Remainder Rule
To be a Vested Remainder: the interest must be:
1. Given to an ascertained person AND
2. Not subject to any unmet condition precedent.
Otherwise it’s a Contingent Remainder.
69
Rule of construction for Contingent Remainder or Executory Interest
If a grantee could take either as CR or as EI, prefer CR.
70
Mahrenholz v. County School Board
Supposed to be used for school, FSD or FS/CS?
Weird case, didn’t use rules of construction
“Only” can be durational but also not.
71
Transfer of interests
If holder of a defeasible estate transfers it to another person under Principle of Derivative Title, the condition is still attached to that property interest even if the condition is not mentioned in the grant.
72
Doctrine of Merger
Example: If a FSA estate is split into a defeasible estate and FI, and someone wanted to buy it in FSA, ie without the condition, she would have to buy all the estates so they “merge” back into a FSA (need present and future interest)
73
Alby v. Banc One Financial
Automatic reverter should the property conveyed ever be mortgaged or encumbered within the lifetime of either Grantor.
Direct partial restriction
Court found reasonable
74
Types of Waste:
Affirmative/Voluntary
Permissive
Ameliorating
75
Affirmative/Voluntary Waste
Affirmative action by tenant which damages the land by changing its nature, character, or improvements to the detriment of the future interest holder’s rights.
76
Permissive Waste
Damage by failing to maintain the land
77
Ameliorating Waste
When life tenant changes the nature or character of the land or its improvements, but the change increases the economic value of the land.
78
Alternative Contingent Remainder
ie. if B becomes lawyer it goes to B, if not it goes to C. C has ACR
79
Types of Vested Remainders
1. Indefeasibly Vested
2. Vested Remainder Subject to Open
3. Vested Remainder Subject to Divestment
80
Indefeasibly Vested
No unmet condition precedent and no condition subsequent.
| To A for life, then B and her heirs
81
Vested Remainder Subject to Open
Only class gifts where at least
1. one taker is vested and
2. the class is still open.
82
Vested Remainder Subject to Divestment
No unmet condition precedent, but there is a condition subsequent. Can be both this and subject to open.
83
Type of Executory Interests
Springing: Defeases a grantor.
Shifting: Defeases a grantee.
84
Confusion between VR/SD with EI vs Alternative CRs
To A for life then to B if B goes to law school; if not, then to C
vs
To A for life then to B, but if B does not go to law school, then to C.
85
Class Gifts
```
A class can be any group of people designated for a property interest.
Any group with members
Can be present or future interest
```
86
Rule of Convenience
```
Rule of construction
When at least one member of a class has an immediate right to possess
But the class is not yet naturally closed
That member can ask the court to close the class according to this rule.
```
When not apply? If contrary to express or clear intent of grantor.
87
How to close a class:
1. No more members can possibly be added
| 2. Rule of convenience
88
Five types of future interests
```
Possibility of reverter
Right of entry
Reversion
Remainder
Executory Interest
```
89
Trust
Legal device that establishes a “fiduciary relationship in which one person is the holder of title to the property subject to an equitable obligation to keep or use the property for the benefit of another.”
Trustee is legal owner and can sell, lease, mortgage, etc
Can only exercise these rights for the benefit of the trust beneficiaries.
Those who benefit from the trust have an equitable title or beneficial interest.
90
RAP applies to three interests:
1. Contingent remainders
2. Vested remainders subject to open
3. “Contingent” executory interests
91
RAP Steps
1. Classify each interest
2. Determine whether the RAP is applicable to each interest
3. For interests subject to the RAP, clearly identify the contingency which must be resolved for the interest to vest.
4. For interests subject to the RAP, identify potentially validating lives
5. Determine whether the contingency will be resolved within a perpetuities period
6. Strike out interests which are void and reclassify the interests remaining.
92
When RAP starts based on type of conveyance
Inter-vivos grant (deed): at the time the grant made
| Devise by will: at death of testator/testatrix
93
RAP Step 3: Identify Contingency
Note: Contingency here not the same as what makes “contingent remainder”
What is the vesting condition:
To ascertain the person?
To meet an unmet condition precedent?
Other?
Consider: What effects it? When will we know? How will we know?
More than one contingency?
94
RAP potentially validating lives
Have to be a “life in being” at the time of interest’s creation
To work, it needs to be someone who can affect the vesting contingency.’’
95
RAP Definition
The RAP period is measured by the life of any person who is alive at the time of the creation of the interest plus 21 years.
96
RAP When is Contingency resolved?
a contingency is resolved if we know for sure it will vest within RAP period or we can know for sure that it will never vest during RAP period.
97
Applying the RAP to class gifts
To validate the interest we must know for certain within the RAP period that:
1. The class is closed; and
2. Any contingency created by a condition is resolved for all members of a class.
3. If not, then the interest fails for all members of the class
ALL OR NOTHING
98
“Unborn widow” problem.
Never going to be a validating life, as we don’t know if widow is “life in being”
99
Concurrent Interest broad definition
Concurrent Interest: More than one person owns the same property at the same time.
Questions that apply: #2-#8
100
Tenancy in Common
1. Own separate undivided interests in the whole.
2. Equal right to use the whole
3. Can exclude 3rd persons but not cotenants, otherwise = “ouster”
4. Can sell their separate interest to others or bring action to partition
5. No right to survivorship
101
Joint Tenancy
1. Four unities: (1) Time (2) Title (3) Interest (4) Possession
2. Equal right to use the whole
3. Can exclude 3rd persons but not cotenants, otherwise = “ouster”
4. Can sell their separate interest to others. CANNOT DEVISE INTEREST. They can bring an action to partition however.
5. Right to survivorship
102
Right of Survivorship
The death of a joint tenant will result in ownership of the land by the surviving joint tenants, to the exclusion of the deceased person’s heirs or devisees.
103
Four unities:
(1) Time
(2) Title
(3) Interest
(4) Possession
104
If one JOINT tenant sells their interest:
New tenant is now a tenant in common while remaining tenants are still joint tenants.
105
Modern majority rule to create JT:
4 Unities and intent
| Minority rule: “as joint tenants” can be sufficient.
106
Concurrent Life Estates
To A and B as joint tenants with right of survivorship =Joint tenancy in fee simple.
To A and B as tenants in common for life, and then remainder to survivor. =Tenancy in common for life with alternative contingent remainder
Neither can destroy the remainder of the other with this method.
To A and B for and during their joint lives, and then remainder to the survivor. =Joint life estate with cross remainders for life and alternative contingent remainders.
Combined time of both A’s and B’s lives. When A dies, devisees get to share the property with B until B’s dies, then B’s estate gets it in FSA.
107
Tenancy by the Entirety (creation)
Creation: require five unities = JT four unities plus unity of marriage. (no intent for MAJ)
Maj: Jurisdictions that recognize TE do not require “intent” to be expressed in instrument: if all five unities are present at the time the interest was created it is a TE.
108
Tenancy by the Entirety (5 things from sheet)
1. Same as joint tenancy but also needs marriage. Five Unities
2. Simultaneous use and possession with CoT
3. Can exclude 3rd persons but not cotenants, otherwise = “ouster”
4. No unilateral right to alienate. Can only alienate or terminate by mutual consent. No right to partition. Ends at death or divorce.
5. Right to survivorship which cannot be broken unilaterally.
109
Harms v Sprague
A mortgage doesn’t break the unity of a JT
| When JT passed, mortgage did not.
110
Mortgages on JTs rules
Minority: Title theory of mortgage (title transferred until mortgage paid)
Borrower gives lender a FS/CS on condition borrower repays loan.
In the "title theory" states (the minority), mortgage severs the title and the tenancy between the joint tenants and creditor is converted into a tenancy in common.
Majority: Lien theory of mortgage (encumbrance on property interest) Doesnt break JT (Harms)
111
Mann v Bradley (and Rule)
Relies on MUTUAL INTENT for severance
Divorcing couple shares title to home, wife dies, husband wants joint tenancy
Divorce shows severance
112
MAJ and MIN Rule for breaking JTs
Majority Rule: Harms traditional rule
Relies on four unities version for severance.
Minority Rule: Mann mutual intent rule
Relies on MUTUAL INTENT for severance
113
Secret Severance
Severing a JT secretly and then at death of JT suddenly expectations change.
114
Overall, What counts as severance?
Transferring whole interest = yes
Transfer leasehold interest?
Technically under four unities yes, but courts split.
If hold as TE, then divorce and not specified?
- Divorce terminates TE but not necessarily co-ownership.
- Some courts still hold JT or TIC unless property settlement specifies otherwise.
115
TIC and Mortgages
TIC: Each cotenant can mortgage her own share and that mortgage will continue to encumber that interest.
116
JT and mortgages
JT: Second holding in Harms as a majority rule; if in mortgage-as-lien state and mortgage by JT who dies, then survivor gets FSA without mortgage.
117
TE and Mortgages
Generally if TE: spouses must act mutually so BOTH must execute mortgage.
MAJ: Mortgage by one spouse is invalid because they don’t have the unilateral right to alienate/incur debt.
MIN: Mortgage is valid and creditors have right to debtor spouse’s future interest (right of survivorship) and/or present interest.
118
TE History and Changes
Many states: Abolish TE altogether
• “Empowering states”: make the wife equal to what husband had under CL
• “Disempowering states”: limit the husband to what the wife had under CL:
119
Judgment Liens
A judgment lien is a court ruling that gives a creditor the right to take possession of a debtors real or personal property if the debtor fails to fulfill his or her contractual obligations.
Issues in property with types of property
120
US v Craft
A lien can attach to a tenancy in entirety
| Only applies to creditors of U.S. government
121
Accounting
Sharing profits from use of land (rent, profits, or proceeds)
Two rules for own use or 3P leasing.
122
Accounting rule: Cotenants using land for own use or business:
Majority: Absent agreement or ouster, not owe rent or profits to co tenants because equal right to possess whole, but cannot exclude them.
Minority: Absent contrary agreement, cotenant(s) in possession does owe rent to cotenants out of possession.
123
Accounting rule: Cotenants who lease property to 3Ps:
Must share profits with other cotenants in proportion to their ownership shares.
124
Contribution
Cotenants seek reimbursement from other cotenants for a pro rata share of expenses that she has paid (e.g. taxes, mortgage payments)
125
Contribution Rules
“Carrying costs” (mortgage, taxes, etc.) & “Necessary repair” : Cotenants must contribute pro rata shares.
“Unilateral improver”: Bears risk and gets potential benefit of “improvement” measured by effect on selling price of property. One cotenant acts and gets all of the value increased. Likewise, decreasing value pays costs.
126
Out of possession tenants Waste rule
Out of possession cotenant(s) can sue in-possession cotenant for waste and seek injunction and/or damages.
127
Esteves v Esteves rule
Accounting and contribution
MAJ: Esteves, cotenant can ask for reimbursement minus credit for sole occupancy
MIN: No defensive offset unless ouster
Parents sue child to make her reimburse them for half of expenses paid without any offset value for their occupancy.
128
Partition
Complaining cotenant asks the court to terminate the cotenancy and divide the cotenancy property, either:
1. in kind (physically) or
2. by sale (division of proceeds). This terminates the cotenancy.
129
Partition exception for right to alienate
Agreements limiting or waiving right to partition may be allowed even if direct restraint on alienation so long as it’s reasonable.
130
Partition by sale rule
Puts burden on party seeking partition by sale. 1. necessary and 2. best interest.
131
Ouster
Cotenant A has ousted Cotenant B if:
1. Cotenant B attempted to exercise her right to possess/use the property and
2. Cotenant A refuses/prevents Cotenant B from using/possessing the property.
Looking for act showing clear repudiation of the other cotenant’s claim of title.
Remedy: injunction to allow use/possession and proven damages.
132
Concurrent interests and AP
```
By cotenant(s) against other cotenant(s) = Ouster + if possession continues starts statute of limitation on action for ejectment which could → AP
By a third party against all cotenants = trespass that could → AP
```
133
Schmidt v Wittinger
Partition by sale can only be made if partition in kind cannot be made without great prejudice to the owners.
Law favors partition in kind.
No duty to sign onto the CRP
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Partition by kind rules
Court would partition in kind unless:
1. Physical attributes of the land makes partition in kind impracticable or inequitable, and
2. The interests of all cotenants are better served with a sale.
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License
A non possessory right that is a privilege to enter another’s land for some specific purpose. Usually revocable at will of landowner.
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Easement
Nonpossessory right to enter and make particular use of land in possession of another person.
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Profit
Nonpossessory right to enter land and in possession of another person and remove some part of that land or product of that land.
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Interpreting a relationship to determine if a “leasehold estate” has been created, including:
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Intentions of the parties
Number of restrictions on use
Exclusivity of possession
Degree of control retained by the granting party, and
ICQE
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3 main ICQE "evictions"
Partial Actual Eviction
Constructive Eviction
Eviction by Paramount Title
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Partial Actual Eviction by landlord/agent liability and remedy:
Liability: “One inch rule”, NOT ONE INCH DISTURBED
Remedy:
Maj: injunction to get possession; terminate lease; or stay without paying rent.
Min: Quasi-contract for actual value of premises
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Covenant of Quiet Enjoyment
A promise to the tenant that neither the landlord, not anyone acting by and through the landlord, nor anyone holding paramount title to the landlord will actually interfere with the tenant’s possession of the premises.
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Eviction by Paramount Title description and rule
3P holds possessory or nonpossessory rights in premises that may be inconsistent with tenant’s right to possess under lease and LL cannot terminate 3P’s rights before tenant entitled to possession.
Two prong rule:
1. 3P with paramount title And,
2. 3P actually interferes with the possession/use as agreed under the lease.
143
Types of Leasehold Estates
1. Tenancy for years
2. Periodic Tenancy
3. Tenancy at will
4. Tenancy at sufferance
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Tenancy for years
Tenancy for any fixed term or duration, whether by months, years, or days.
Expires automatically at the end of the lease.
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Periodic Tenancy
Tenancy measured by successive, identical periods of time (years, months, days, weeks, etc.).
A periodic tenancy automatically renews for successive periods unless one of the parties gives proper notice to terminate the tenancy. Common default is one period prior to give notice.
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Tenancy at will
Tenancy without a fixed duration and without any defined renewable periods. 1.Lasts as long as both parties wish it to last and
2. terminates when either party demonstrates an intent to discontinue the tenancy.
Most states now require some minimal period of notice though.
i. COULD BECOME AN IMPLIED PERIODIC TENANCY (Selk)
ii. Making periodic payments or the like may show conduct of a periodic tenancy.
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Tenancy at sufferance
Not a tenancy at all. Label given to the situation that arises when a tenant “holds over” in possession after the lease has expired. Lasts only until the landlord evicts the tenant or until the parties agree expressly or impliedly to create a new tenancy.
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Notice to terminate
MAJ by statute require
| to be in writing
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Transferring leases general rule
General rule: Absent an agreement or an
| enforceable restraint on alienability, leasehold estate is presumptively transferable, either by sublease or assignment
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Is it a sublease or an assignment?
MAJ: Functional definition, not the words used in lease or “intent” of the parties.
MIN: Intent of the parties
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3P beneficiary contracts in LL-T law
in jurisdictions that recognize them: if a subtenant or assignee (T2) promises in contract with T1 to “assume the obligations of the lease” or specifically to pay rent to the LL, the LL can sue T2 as a “3P beneficiary” of the contract between T1 and T2, even if not in privity of contract or privity of estate with T2.
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Distinguish: “Release” and “Novation”
Release: automatically released from agreement
Novation: new agreement
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If T1 transfers to T2 and rent stops, can LL terminate lease?
T1s transfer of interest to T2 in violation of clause usually not void, but failure to pay rent or other defeasible provision is breached, LL can terminate the original lease which will end T2s right to possess because it is derivative of T1s lease
154
Julian v Christopher
Overruled old Klawans rule, requiring some reason for withholding consent unless explicit in lease.
Tavern lease had a clause that premises could not be sublet without consent of the landlord.
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Silent consent clause
Prohibits transfer without Landlords consent but does not specify what standard should govern the landlord’s decision. (Klawans)
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Withholding consent to transfer lease rules:
MAJ: do not imply a reasonableness limit to a “silent consent clause” so a landlord could reject for any reason, except an unlawful one.
MIN: Julian Standard for withholding consent:
1. Requiring landlord to act reasonably when withholding consent.
2. Permitting the landlord to act arbitrarily and capriciously in withholding consent.
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Real covenants that runs with the land
For now, standard covenants in a lease: CQE, duty to pay rent, duty to perform repairs, and use restrictions, will “run with the land” to subsequent owners.
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Duty of a Landlord to provide possession
Maj rule: Duty to provide both legal right to possess and actual physical possession. (“English Rule”)
Min rule: Only duty to provide legal right to possess. No duty to provide actual physical possession. (“American Rule”)
Consequence: If holdover T or trespasser in possession when new tenancy begins, T has to evict and has no claim against landlord.
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Fidelity Mutual Life Ins. Co. v Kaminsky
Abortion doctor case.
| Both action and lack of action constitute “conduct” by the landlord
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Elements of remedy of Constructive Eviction for substantial breach
1. A material action or omission by LL, LL’s agent, or paramount title holder (or attributable to them) Action or inaction.
2. Which is “intentional” (which can be inferred from conduct)
3. Which causes interference with the tenant’s possession as intended by the lease that is:
Substantial (question of degree and amount)
Permanent (recurring and likely to recur, not meaning constant)
4. T gave notice to LL about the interference and gave reasonable opportunity to cure.
5. LL did not cure
6. T vacates the premises within reasonable time after LL’s failure to cure
usually a defense when sued for no rent
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Non-substantial breach remedy
T’s remedy is to stay in apartment, continue to pay rent, and sue LL for damages.
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Illegal Lease Doctrine
A lease of unsafe or unsanitary residential unit that violates local housing code is deemed an “illegal” and therefore unenforceable contract.
Only applies to a defect that violates local housing code and existed at the beginning of tenancy.
163
Implied Warranty of Habitability implies (Poyck):
Premises are fit for human habitation
Condition of premises is in accord with the uses reasonably intended by the parties; and That the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety.
Not waivable
Measured in the eyes of a reasonable person.
164
Elements of Common Law IWH liability rule
1. Substantial defect, latent or patent, going to health and safety of tenants exists anytime during tenancy.
“Reasonable person standard” applies
Courts will consider local housing codes, but don’t need to rely on them.
2. T gave LL notice
3. T gave LL reasonable opportunity to cure
4. LL didn’t cure
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What if T causes breach of IWH?
LL must fix it, but can bill T for cost of repair; usually lease includes damage clause.
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ICQE vs IWH
ICQE:
Only LL and agents responsible unless T can attribute 3P conduct to them.
Requires intent and other elements
Different scope: interference with possession as “intended by lease”
Two versions for different remedies: non-substantial and substantial violation
IWH:
LL responsible no matter who caused the problem.
No intent requirement and no requirement that problem be “permanent”
Only applies to health and safety defects
More remedies
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Retaliatory Eviction or Refusal to Renew Lease
General rule:
Court will presume retaliation if adverse action by LL occurs within some specified time after T’s complaint or assertion of other tenant rights.
Shifts burden of proof to LL to prove that reason was not retaliation.
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Caveat lessee (tort liability)
LL-T equivalent of “buyer beware”. Places upon the tenant all responsibility for the condition of the premises during the tenancy.
Think about tort liability with the elements (duty, breach, causation, damage).
169
T can stop rent:
These obligations are independent of tenant’s obligation to pay rent. Tenant cannot withhold rent and terminate lease if landlord breaches this duty unless either:
A) The lease specifically provided the tenant with a termination right
B) The landlord’s breach resulted in conditions that were so serious as to justify a constructive eviction.
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Latent defects
Not easily discoverable
| LL has an affirmative duty to disclose. Fact that LL does not misrepresent is insufficient to escape liability.
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Patent defects
Obvious
If patent defect, and T inspects premises but does not find the defect, LL not responsible.
Ask LL to fix
If LL not agree to fix, not rent the dwelling
172
Ransburg v Richards
Landlords can put in all sorts of things in the leases, but that doesn’t mean they’re enforceable.
Exculpatory clause in lease went against public policy.
Some things are unwaivable
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Tenants Duties
Pay rent
Not commit waste
Not bother other tenants
Abide by other enforceable lease provisions
Per statute in a maj of jdx’s, T notice to LL to terminate tenancy must be in writing (and vice versa)
174
Gorman v Ratliff
Violence still possible even without confrontation
So ended “self-help” in a majority of jurisdictions
Some minority jdx’s allow “self help” as long as no “breach of the peace”
175
Illegal Lease Clauses
Immediate termination of lease (particularly “any violation of any provision”) without notice is not enforceable.
176
LL’s options if T is in Possession and defaults
1. Let remain and sue to collect rent as it comes due
(But if T can’t pay or is judgment proof, or if market rates go higher LL will want T out to re-let apt)
2. T leaves by mutual agreement
But risk of threat and intimidation by LL
3. Evict using unlawful detainer law and procedure
4. Sue for ejectment
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“Summary Eviction” = Unlawful Detainer
1. Landlord must give notice and defined number of days to cure
2. If tenant does not, landlord then files an action seeking an expedited statutory eviction of the tenant.
Limited defenses, T can’t counter-claim
Not waivable
Compromise in some way
178
Three Types of typical possible claims against LL in eviction:
1. Violation of ICQE (possession rent)
2. Wrongful possession/Unlawful detainer (Gorman)
3. Conversion of personal property
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LL’s options if T is out of Possession
1. At common law do nothing
2. Accept surrender:
T’s offer: can be explicit or implicit
LL’s acceptance: can be explicit or implicit
3. Treat as “abandonment”
180
Surrender
T’s offer: can be explicit or implicit
LL’s acceptance: can be explicit or implicit
Court will decide if LL has accepted surrender
181
Abandonment
Abandonment is when tenant:
1. Vacates the leased premises without justification
2. Lacks the present intent to return; and
3. Defaults in the payment of rent
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Abandonment remedy
Lease not terminated, so T still liable for “rent”;
MAJ: LL has “duty to mitigate damages” in residential tenancies.
1. LL must re-enter and make reasonable efforts to re-let on T’s account.
2. T will be liable for any deficiency between amount of “rent” under lease and the amount LL collected from new tenants (usually based upon LL’s reasonable efforts to exercise duty to mitigate)
183
Results if LL accept surrender:
On property side: terminates the lease (and therefore T’s liability for future rent); any re-letting by LL is on “LL’s account.”
On contract side, T still liable for previous unpaid rent and “damages” consequent to the breach because of anticipatory breach of contract.
Damages = difference (if any) between rent specified in lease and fair rental value of property
184
Duty to mitigate in leases
Frenchtown Square Partnership v Lemstone, Inc.
Implied DTM in residential leases as a MAJ rule.
Implied DTM in commercial leases as a MIN rule;
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Logic of LLs rights in abandonment
Keep it in line with old lease, ie same period and rent
LL has expressed or implied authority to assign on T’s behalf for remainder of lease.
In theory, if LL gets more rent than stated in T’s lease, then (abandoning) T should get that extra rent (less damages caused by breach)
186
If LL fails to fulfill the duty to mitigate?
Some jdx: No recovery at all
| Other jdx: Reduce recovery by amount could have gotten if fulfilled duty to mitigate.
187
FHA protects who?
1. Race, 2. Color, 3. Religion, 4. Sex, 5. Familial status, 6. Disability, 7. National origin, 8. Sexual orientation
188
FHA does not protect:
1. Marital status, 2. Wealth, 3. Source of income, 4. Age, 5. Occupation, 6. Criminal history, 7. Sex offender status
189
CA covers under FHA plus:
1. Gender and identity, 2. Sexual orientation, 3. Marital status, 4. Ancestry, 5. Source of income, 6. Genetic information, 7. Age, 8. Citizenship status
190
Jancik v HUD
Asked very pointed questions about their name origins etc
| Use of "testers" for finding discrimination is allowed
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What is necessary for a claim under FHA?
1. Disparate treatment: treated differently due to class
2. Disparate impact: neutral rule has effect of discriminating without reason
3. Discriminatory statement: ordinary hearer/reader standard
4. Interference/intimidation with exercising housing rights
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Ouster remedies
1. Injunction
| 2. Value of lost use via "rent" based on fair market value of "rent"
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Pro rata share of mortgage payments for cotenant
Each cotenant owes what they own of the property (ie 90% ownership, 90% of the payment)
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Contribution for in possession cotenants
Owed via contribution pro rata share if one tenant pays all of the mortgage or whatever
195
Rent received from 3P split among CTs how?
Pro rata share. ($10k rent for 90% and 10% owners = 9k and 1k shares respectively)
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Necessary repair for cotenants, who pays?
Pro rata share for all tenants in or out of possession
