Property Notes/Outline

Y'all, don't read these, they're boring. The only reason they're here is so that I can work on them both at home and at school and this is a convenient way to do that.

Property is really a bundle of rights, among which are:
right to use: Right to sell (alienability) Right to devise (give to heirs) Right to exclude. Descendable-> to heirs if there's no will.

Things that don't have these rights are not property, for example: elected office in a democracy cannot be sold (not alienable), also not inheritable, etc. therefore not property.

Acquisition of Property Rights:
By Capture
Pierson v. Post : Post chased fox, Pierson saw him chasing it and caught and killed it. Possession determines property rights, if an animal is mortally wounded that counts as possession, it's under your control. (on unowned land) if a trespasser, no right. If wild animal is tamed and escapes, no longer in possession, if animal comes back, then possessed by tamer. If animal has collar/mark, it belongs to someone.

Popov v. hayashi: Popov caught ball, picked it up, fell out, retrieved by Hayashi. We don't know whether Popov could have retained possession or not. Problem has to do with whether he achieved complete control-> possession of the ball. Actor took significant but incomplete stepst to achieve possession of a piece of abandoned personal property, interrupted by the unlawful acts of others, actor has a legally cognizable pre-possessory interest in the property, creating a qualified right to possession. Ct decides to divide ball.

Collective ownership- everyone owns some share in it- like public park.

By Find : finder has rights to lost property against all but true owner. Originally owned by someone else.

Lost property: involuntarily parted from, like dropped ring. Finder generally gets.
Abandoned property: person throws out by side of road, doesn't want it anymore ever. Goes to finder. Former owner has no claim.
Mislaid property: property intentionally left somewhere with intent to reclaim. (I leave bag etc here while answering phone call) generally goes to owner of land where found. (locus in quo)Why, owners more likely to come back to where they left it.
Treasure Trove: coins or currency, gold, silver concealed by owner, with "air of antiquity". Must have been hidden long enough so that owner is not discoverable, or is dead. Lead is not treasure trove.
Many jurisdictions have abandoned these distinctions and now lump everything together under lost, and give to finder.
Favorite v. Miller: pl owns land where Miller goes and hunts up buried statue, thinking it might be there, he digs it up and carries it off. Ct decides it's mislaid because the tories intended to come back for it. They could get it but it was forgotten. Trespass also defeats def's claim to property.
Benjamin v. Lindner Aviation
Benjamin found $18K in cash in wing of plane owned by bank being serviced by Lindner. Dist ct decided it was mislaid- owner placed it there w/intention of returning and forgot) and awarded to bank, affirmed by appellate ct. Benjamin said it was lost and statute sez he gets it. Benjamin claimed common law distinctions no longer valid. B/c carefully wrapped, concealed means owner meant to come back and get it. If you drop $5 on floor, it's lost. Not abandoned because who would abandon $18K? again b/c of concealment, it's not abandoned. Not old enough to be treasure trove.
Bailment: rightful possession of goods of another, I (bailor) entrust dry cleaning/qqch to qqun d'autre - they are the bailee.
Winkfield doctrine, in an action against a stranger for a loss of goods caused by his negligence the bailee in possession can recover the full value of the goods. Wrongdoer cannot defeat claim by showing bailor didn't own the thing. Recovery is for bailor. Even though Bailee initially would not be liable to bailor 'cos bailee not at fault. wrongdoer now has defense in suit by bailor against wrongdoer, he's already paid once. In finder cases, finder thought of as bailee.

Hurley v. city of Niagara Falls NY (1) Contractor v. Owner, contractor found bundle of $ while renovating house. Is it lost or mislaid or treasure trove. But statute has abolished these distinctions, and he shoulda deposited it w/ authorities. Ct decided contractor not employee. Pl was finder so he should get it.

By Discovery: not previously owned by anyone.
Johnson v. M'intosh
Can Red Indian titles be granted in U.S.- No, they never had title in the first place. Discovery gave the Europeans title-based on various treaties. Occupancy not required. Red Indians could possess but not own.
By Creation
White v. Samsung Electronics
Pl sued after Samsung dressed a robot like her, stood it next a Wheel of Fortune board and she sued for them taking her likeness. Ct said impersonation can be illegal. Defendants had not appropriated her name or likeness but right goes beyond simple name or likeness. Identity theft!

By Gift
Davis v. Davis
mary Sue davis wants embryos, "Junior(!)" sez, I dunno if I want to be a parent outside the bonds of marriage, trial ct sez; pl gets them, because they're human beings, and people. ct of appeals sez, def has a constitutionally protected right to stop this. There's no compelling state interest to justify implanting them against the will one of the parties. Give them back tot ehm and let them figure it out. Pl wants to know where is this right in the constitution. In the end the party who wishes to avoid procreating should prevail. Preembryos are not property.
Brotherton v. Cleveland
Pl is wife of decedent, corneas removed by coroner against his will, she said no, coroner did it anyway. Corpses are not property, maybe quasi property? She has the right to lawfully dispose of and bury according to the statute. She did have a claim.
Other quasi property things are like newspaper information- it's not really property but we can protect through injunction.

Gifts: Normally when we give a gift, it's intervivos, while we are living. Other gift is testamentary, you have to be dead.

Intent (giving something NOW w/o consideration; irrevocable present transfer of ownership) + delivery (it's in your hands NOW or constructive/symbolic transfer)+ acceptance = gift- gifts are irrevocable

Was donee natural object of bounty? If parent gives child a gift, very likely- If 98 y.o. man gives gift to 22 Y.o. woman, not so much

Gruen v. Gruen son v. Stepmother, he sez he owns painting which deceased father gave to him - retaining life estate and giving son remainder, son has never had possession of painting. Def sez this is a testamentary gift and doesn't work. Or, she sez, donor can't make a valid, inter vivos gift of a chattel and retain a life estate. If donor holds on to something while alive, that invalidates gift. This ct sez a valid gift can be made and retain a life estate, Father intended to transfer ownership to Pl in '63. Ct sez, no you can make valid inter vivos gift of remainder interest in real property and stocks and bonds, so why not a painting. Case separates title and right of possession.

Albinger v. Harris Pl gave def diamond ring and earrings, they fought and fought, def returned it to pl, then he !(mailed)! it back to her. fought and fought, Pl said take car, horse, dog, and ring and get the hell out. then decides wants ring back. Is ring a gift in contemplation of marriage, with this condition attached to the gift? Ct sez; can't revoke a gift unless made in view of death. she gets to keep it. Engagement ring NOT subject to implied condition of marriage.
Gift inchoate-not yet completed until marriage.
Foster v. Reiss
Def is decedent's husband, wrote a list of items and what she wanted done. Def found out about note from wifes friend, retrieved all items as per note. Did she recover? everyone except def said no, def said she did, trial judge said no. Will gave $1 to def, rest to children and grandchildren
Def claimed ownership of gift causa mortis. a person in his last illness, aware of approaching death, delivers to another personal goods in case of death, if person dies, then donee keeps goods. Delivery here is in question. Donor must be competent (she was) had the intent to give the gift (she did) and acceptance by donee (yes) delivery had to be actual, complete and unequivocal- there's the problem. Does it remain in possession of the donor until death? Is transfer absolute or can she take it back. We don't like gifts causa mortis b/c intrudes into will territory.
Actual delivery: is transfer such that, combined with intent, it completely strips the donor of thing given. Here the delivery was really the taking by the donee. Note doesn't count b/c he took the note after she lacked the capacity to bestow it. Judgment for Pls. Will only speaks at death, if she's given it away before she dies, can't be given away in will. If she had placed it in his hand before she died, it might have been constructive delivery. Roommate was agent; under agency law, agent's power revoked under death/incapacity. Lots and lots of intent doesn't make up for actual delivery.
Gifts are irrevocable. For gift causa mortis, must be facing imminent death.
Colavito v. NY Organ Donor Network
Pl is specified donee of a kidney- claims property rights to it. Original kidney was no good, def said Pl had no common law or statutory claim, a kidney is not property, part of a corpse. Only interest is in proper burial. Uniform Anatomical Gift Act, based on wishes of deceased during his lifetime concerning disposition of his body; desires of next of kin; autopsy needs per state; private needs for autopsy; needs of society for bodies, tissues, and organs. NY law sez; rights of donee are paramount to rights of others; Court sez; statute is silent as to right donee has in organ. Can designate recipient, Pl not harmed by def b/c he could not have used kidney. Donee is someone who needs and can use the donated organ, no claim.


Rights, Obligations, Powers of Possessors
Rights
Tapscott v. Cobbs: Cobbs sues Tapscott to recover lands. Anderson Dies in 1800, land sold to Sarah Lewis, she lives there until 1835. Now it's 1854. Also sold to Rives, no one pays for this. Cobbs is Lewis' heir- she has not taken possession of the land. Tapscott came in, had no claim or title in 1842. General rule is Pl has to prove title. Can't just show def has no title, but there are exceptions. Law protects peaceable possession against everyone except actual title holder. Constructive possession not enough to maintain trespass to property, actual possession required. Unless someone else has possession, it goes to the heir. Heirs get it

Powers
Porter v. Wertz
Porter sued Wertz, who was actually someone else, and Feigen gallery. Pls lent painting to Wertz, who sold it to gallery. which then sold it outside the country. Equitable estoppel doesn't work because art dealer did not act in good faith in investigating who was selling them painting. Merchants had possession for display but not sale.
Statutory Estoppel: does not bar recovery, "any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business." Feigen had duty to investigate who was coming to him w/this painting.
Obligations
Peet v. Roth Hotel co
Bailment: Peet left valuable ring with cashier who should have given it to another guest, but it "disappeared" bailee had burden of proving loss did not result from his negligence. Def had duty of care to hold ring. if presence/identity of article claimed is concealed from bailee, is no bailment accepted? not here. There's a mutual assent for K manifested. Def is a non gratuitous bailee, that is, it was to her benefit, in rendering service to guest, to accept bailment. Possession gives legal responsibility. Gratuitous is where I derive no benefit, like take care of Sheridan's cats. duty of slight care vs. duty of ordinary care. If she borrows Lawnmower, it's of benefit to bailee and high standard of care required.
Elliah v. Airport Parking co of America
Car was stolen while in airport parking lot, is there a bailment? ticket sez owner assumes liability, it's an adhesion K, or could be, and they don't always count. But Possession of automobile not given, control and dominion, so not liable

Bailment, if you entrust goods to a merchant dealing in goods of that type, they may sell it to someone else and that person is legitimate owner. Of course cause of action still accrues against bailee.

Adverse Possession
Actual, have to actually take possession
Open + notorious, has to be obvious where owner can see
Continuous, Can't break chain, can't leave for extended periods of time
Hostile: most difficult: you know it's not yours and you claim it anyway
Exclusive: one person has to assert control to the exclusion of others
Actual, Open, Continuous, Exclusive
Jarvis v. Gillespie: Gillespie given quitclaim deed to land by town of Waterville, Jarvis has acquired by adverse possession. had used property for various purposes. Actual- 1947-1986; Open and notorious, fence, no trespassing signs, town clerk knew of pl's claim, Exclusive, only person, hostile, claimed the land and treated it as his own
Def sez; uses to which pl put land not sufficient for adverse possession (didn't build house) ct sez he used it as anyone else would.

State of Mind: ME doctrine; have to know it wasn't yours
IA: you have to have done it in good faith
CT:state of mind doesn't matter

Hostility
Mannillo v. Gorski
Carpenter v. Ruperto
Innocent Improver Doctrine: if someone as in Mannillo v. Gorski innocently improves property encroaching on land, then encroached owner might have to pay for improvements or sell improved land.
Colour of Title and Constructive adverse possession
Adverse Possession of Chattels
Guggenheim v. Lubell
Estate: type of ownership of land. Think of Estate as originating in the land and going to the owner, not the other way round.

There are 5 types of present possessory estate. (present possessory, here's the land, who is attached to it now vs. Future estates)

Fee Simple Absolute; most common. Gives whole bundle of rights now and forever, until s/o changes it. Grantor retains: nothing. O -> A and his heirs. To third person? nothing.

Fee Simple determinable: Could continue forever. If you violate some condition, it IS taken away. To Trey as long as he remains single. Grantor retains: Possibility of Reverter- to third person? Executory interests.

Fee Simple on Condition Subsequent: Could continue forever, if you violate some condition, it COULD be taken away. Grantor retains: right to re-enter. To third person? Executory interests

Fee Tail: We don't worry about this anymore. O -> A and the heirs of his body. COULD terminate once A has no more natural heirs. Grantor retains: Reversion. What's left for 3d person? Remainders.

Life Estate: To Trey for life. Grantor retains: Reversion. For third person? Remainder/Executory interest.

if it is unclear which estate is granted, courts assume fee simple absolute.

Reversions
Future interests in Transferees
Destructability of Contingent Remainders
Rule in Shelley's Case
Doctrine of Worthier Title

3 types of future interests: Reversionary interests, remainder, executory interests.

3 Reversionary interests:

Possibility of reverter

Right of entry for condition broken

Reversion

Remainders: a future interest which becomes present possessory when all prior interests expire. Also: Future interest created in a grantee after an expirable estate. (Basically, follows life estate) such as: To trey for life, then to Alex. Alex/ heirs have remainder. When Trey dies, then Alex gets the remainder. Can't divest anyone else of anything, so can't follow conditional estate like FSD or FSSCS. Only has to be CAPABLE of becoming possessory.

Indefeasibly vested remainder: Can't take it away. Limited in favour of a born or ascertained person. WILL go to defined person in the future. Alienable, devisable, descendable. (To Alex + heirs)

Vested remainders are indestructible: Taker is born and identifiable; no condition precedent to taking.

Contingent remainder: To heirs of Alex's body- limited in favour of someone who may not exist. Unborn, unascertained, or perhaps s/o born/ascertained but there's a condition. To Trey for life, then to Sheridan as long as she is unmarried. Alienable, devisable, descendable. Also: destructible according to doctrine of destructability; Unless contingent remainder vests at or before termination of preceding estate, it is destroyed.

SO: O-> A for life, then to B if B marries C. B has a contingent remainder, O has reversion. If B marries C WHILE A is alive, remainder vests and continues; if B marries C AFTER A's Death, then B's remainder is GONE.

O-> A for life, then if B marries and is still married to C on A's death, to B and his heirs.

B's remainder does not vest until A's death. O has a reversion.

Contingent remainders can be destroyed by merger.

O-> A for life, then to B and his heirs. B sells his remainder to X, who also buys A's life estate. The two estates are merged into one fee simple absolute.

O-> the church and its successor and assigns as long as the land is used as a church. Church has: Fee Simple Determinable, O has: Possibility of reverter in Fee Simple Absolute.

Vested remainder subject to open/vested remainder subject to partial divestment. Remainder limited in favour of a class; Freddy's children. vested if there is at least one living member of the class, subject to open if new persons can join class.

It becomes contingent remainder if: people named in class are unborn/unascertained

Vested remainder subject to complete divestment

O-> Trey for life, upon Trey's death -> Alex and his heirs, but if C marries D -> D and her heirs. Alex has a vested remainder subject to complete divestment. Its in favour of a born or ascertained person, or in a class that is vested subject to open, but is also subject to a condition subsequent so that it may not become possessory.

Forfeiture: O-> A for life, if B survives C-> B but if C survives B-> C, there has to be a reversion, because after A's life estate we have a series of contingent remainders. Only way it can become active, is through treason.
Class closing: (rule of convenience)

O->A for life, then to B's children who reach 21. B now has two children, ages 6 & 10, Once 1st child reaches 21, class is CLOSED. Second child can still claim interest 1st child has vested remainder subject to partial divestment, second child has shifting executory interest.
Executory interests: must divest someone else of estate in order to become possessory. If it doesn't divest, it's a remainder.

shifting executory interests: future interest created in transferee. In order to become possessory, upon occurrence of event, must take away interest of someone else.

Springing executory interests. Future interest for transferee. Must divest TRANSFEROR, rather than 3rd party of interest.



Rule against perpetuities. Must vest, if at all, w/in 21 years of a life in being. Life in being: s/o named in the grant, can't be a placeholder like youngest daughter. WHY? b/c we don't know at the time, who youngest daughter will be. Don't forget infectious invalidity, if a court thinks you've put in an interest to make another interest void or subject to the rule, out goes first interest.

http://www.scu.edu/law/FacWebPage/Carbone/RAP/start.htm



O-> A and heirs, but if land is ever used for comm. Purposes, to B and heirs.



O has nothing, A has fee simple determinable, B has shifting executory interest. BUT. This violates rule against perpetuities so A has Fee Simple .

CONCURRENT ESTATES

when two or more people have concurrent and equal right to possession/use of same parcel of land.
Dower and curtesy: Wife wasn't originally the heir, so dower was established.
Three types survive: Tenancy in Common, Joint tenancy w/right of survivorship, tenancy by the entirety

Tenancy in Common: each tenant equally entitled to the right to possess all of the property subject to the tenancy; each co tenant has an undivided interest in the whole. Alienable, devisable, descendable. Do not need to have acquired interest at the same time or under the same instrument; do not need to have an equal interest in property.

Joint tenants with right of survivorship: Must pass four unities test: 1) Time: acquired interests at the same time
2)Title: Under the same instrument
3) Interest: Identical percentage share of estate
4) Possession: Each tenant has an identical share respecting duration, quality, and right to possession.

Right of Survivorship is a big deal, fragile. If you have this, say A & B own property. W/ JTROS, if B dies first, his right expires and A is left w/FSA. under Tenancy in common, when B dies, his interest is devisable/alienable/inheritable. A doesn't have anything MORE than what they started with.

(some states have abolished/modified test)
The difference is: if I die, Trey gets the whole thing. Surviving joint tenant gets entire property in fee simple. Interests not devisable or descendable, but they are alienable. As each owner dies, his interest in the property is extinguished. If the right to alienate is exercised, joint tenancy ends and converted into tenancy in common.

If someone conveys or devises property to two or more people NOT married to each other; such as mom and dad give property to Trey, myself and Alex, joint tenancy w/right to survivorship presumed, but this is no longer the case. Nowadays tenancy in common is more common presumption.

Tenancy by the entirety: only for married people. only in 20 states, in other states abolished in favour of tenancy in common or joint tenancy with right of survivership.

O-> A and B, jointly. (Tenancy in common)

In 2000, A and B own Blackacre as Joint tenants with right of survivorship: A gives right, title and interest to C. This converts title to tenancy in common btw. B and C. In some cases, there are two types of joint tenancies, ordinary joint tenancy and joint tenancy with "full rights of survivorship" in 2nd case, tenants have concurrent life estates and each has a contingent remainder in FSA whoever survives.

O-> A, B, C, Joint tenants w/right of survivorship. A->D Now tenancy in common btw. B, C, D. B dies 2003 w. X as heir but conveys estate to Y.

All cotenants, tenant in common, joint tenant, or tenant by the entirety, has the right to possess the entire property. a Co tenant using entire property does not owe rent to other co-tenants, unless forced off property by ouster.

I pay for upkeep of property, if I spend money as a cotenant, I may seek reimbursement from other cotenants. Either by Contribution, when i demand cotenant pay for pro rata share, by Accounting, when I rent property to a third party, or by final settlement on sale or partition.

If I pay taxes or interest, that's carrying charges and all have to pay. In some states insurance is a carrying charge and all have to pay, if it's not a carrying charge, then no. If pay mortgage as due, then can seek contribution, if prepay, no.
Cotenant cannot get contribution for repairs. Courts don't like to decide this.

In Accounting co-tenant collecting rent payments may offset the costs associated with generating and collecting the rent by $ spent on taxes, interest, mortgage principal and insurance, advertising, actual amounts for repairs, etc. Then distributes to cotenants.

A, B, and C own property as tenants in common. a paid to build casino, property is worth 100K at beginning. Now worth 300K. A subtracts cost of casino and then divides evenly.
Cummings v. Anderson

Two people bought house together; Respondent sues for purchaser's equity of house + half of rental value of house after leaving petitioner due to Crackers having sex with chickens. Respondent sez: She left and abandoned interest, didn't pay for it. But she + lower ct say: interests in property were fixed as of purchase date, unaffected by her later actions.
Precedent sez: you get the proportion what you pay for.

Tenhet v. Boswell, Severance of concurrent estates.
Mortgages: Most states are lien theory, meaning a mortgage is security for a loan and title remains with debtor. Giving of mortgage by one tentant does not sever joint tenancy. Ga is title state meaning bank owns it until paid off.

Johnson + Tenhet owned land together, Johnson leased to Boswell w/o tenhet's knowledge w/option to purchase. Johnson dies, Tenhet wants land back. Does lease destroy joint tenancy w/right to survivorship? NO. When the lessor dies, the lease dies with him. (joint tenant dies and so does his interest) If the lease did sever the JTROS, the estate has to honour the lease. Not the rule in all cases, some cts say it is a severance. After the lease, the lessor possesses it as Tenancy for years, JT1 has a reversion. We could also have a temporary severance; when the lease expires, it returns to JTROS. If owners die during lease, it becomes a severance.

Porter v. Porter. Mary Jane Porter appeals partial summary J granted to Martha Porter. Does divorce destroy JTROS?

Appellant Mary Jane & late Denis married in 48, purchased house 63 as JTROS. Divorced '76. mary jane gets right to exclusive occupancy of house. (sounds like life estate to me) Denis remarries Martha, until dies '83. No one tried to modify/reconvey interests.

Martha Porter wants proputty sold, divided, claims his estate tenant in common and divorce annulled JTROS. Common law provides/d that destroying one of 4 unities destroys JTROS, so divorce destroys unity of possession? Which is: one and same undivided possession, common right to possess and enjoy proputty. Court sez: granting of exclusive possession of house to appellant did NOT destroy unity of possession, 'cos ct could later modify/terminate based on retention of jurisdiction. Exclusive occupancy given to appellant temp, not perm, and this temp division does not destroy unity of possession.
Jointly could be either JTROS/Tenancy in Common. If decree doesn't say it severs, it doesn't.

If couple owns as tenants by the entirety, divorce destroys.
Partition: property divided, can be done voluntarily or involuntarily. ANY owner has the right to partition and divide up. We like to partition in kind- just cut the property in half- but in many cases we have to partition by sale. Even if you have 50 owners, it only takes 1 to get a partition. Not a majority.
Ouster: One tenant not liable to another tenant for rent unless there's an ouster. If husband had rented to 3rd party, he woulda bin liable for rent.
Accounting One cotenant accounting to another for income/contributions from party.
Contribution: B stays, A leaves, B has to put new roof on, can B require A to contribute 1/2? Most courts say no, some distinguish btw nec. & unnec repair. Many cts also look at who's in possession.

Let's Alex & I build a casino on Blackacre, but I don't have $ to improve, one cotenant can charge #2 for value of improvements, but only on final accounting. If Blackacre empty is w/th 100K and with hotel costing $1mil is worth $2mil, then you own 50% so you get- 2mil - 1 mil cost of hotel = 1 mil split evenly. Improver does not get "xtra" cost of bearing risk. Spose "improvement" makes ppty worth less? Waste generally only applicable to life tenants, depends on jurisdiction.

Estate of Ingram
ddies. Daughter kept Savings, checking, cds.
Daughter sez: I took care of her, they're mine, other kiddies say, no you don't either.
Interest claimed by mommy. Daughter contributed 0. Other daughter claims, just wanted Daughter 1 to pay bills, no one knows what "everything means."
This ct sez: Don't include CDs, bank accounts are to be divided.
JTROS=express language OR actions showing intention. Transfer + Written agreement sufficient; does not (apparently) have to explicitly say JTROS. In this case, that language existed for CDs, but not for savings/checking accts. Just 'cos it was joint, not JTROS: no written express language, no clear intention.
5 factors for clear intention:
1) owner's unqualified expression of intent to create relationship of joint tenant at that time.
2) owner asked, bank told her to do it thata way.
3) both people could use
4) both tenants have consented to use
5) exercise of possessory rights by any of tenants.
(considered as whole, one is insufficient)

We don't have 1), we don't have 2) we do have 3) although Daughter did not exercise, 4) Sure, 5) Mommy did, daughter didn't.
If we had evidence as to terms/conditions on signature cards, that would be helpful.
JTROS cannot be severed by will, must be done during lifetime of severing tenant.

Constructive trust: involuntary or implied trust which arises by operation of law, against individual when individual obtains legal right to proputty thru fraudulent, abusive means, or by means "against equity and good conscience" - used to avoid unjust enrichment. "unfairness": not sufficient. Burden on (effective pl). No reasonable doubt.

Validity of JTROS for joint bank accounts:
Contract theory: 2nd owner entitled to balance b/cof K btw. Depositor and bank. survivor entitled to balance in acct as 3rd party beneficiary, irrelevant that coowner had effective sole possession.

Gift theory: if there's an intent to make gift+ delivery+ acceptance, survivor gets it.


Leasehold Estates

Tenancy for a term of Years: any fixed or computable amount of time. (does not have to be for years, month is fine)

Cts can restrict duration of tenancy. No notice required to terminate other than notice provided by the lease. Alienable, devisable, descendable. Mostly by written agreement, can't do it orally for more than a year per most Statutes of Frauds.

Periodic Tenancy: at will, endures until one of the parties has given the required notice to terminate the tenancy at the end of a period, could be one week, month, etc., automatically renewed unless notice given. Normally year to year required 6 mos notice, otherwise notice = term of lease. (some J shortened)


Tenancy at will: of potentially indefinite duration, can be terminated w/o prior notice by EITHER party. If not by EITHER party, then not tenancy at will. Death of either terminates Tenancy at will.


Tenancy at Sufferance: not really a tenancy; basically, tenant has adverse possession and remains in possession after the termination of the tenancy.


Distinguished by notice required to terminate tenancy, and time in which required notice must be given.

necessity of delivering possession; leaseholder filed suit when ppty not ready/vacant at proper time. Def sez; no express covenant to see that premises were open for entry.
English rule: implies covenant requiring lessor to put lessee in possession of premises
American Rule: no such implied covenant
Really have to sue holdover tenant, not landlord
(Does this tie to ownership, as in, now the lessee is legal "owner" and has to defend his rights?)
Ct decided for American Rule, not true for all Js
Lease restrictions: (like don't paint the walls redrum orange) ambiguous lease provisions are construed in such a way to permit least restrictive use of the land.
Illegality and commercial frustration If both LL & tenant intend that premises used for illegal purposes, terms of lease cannot be enforced.
Warranty of Fitness for a Particular Purpose: tenant bears risk that property may not be suitable, except in cases of a furnished home. Tenants can terminate the lease if tenant was fraudulently induced to enter the lease.



Lease covenants are independent unless otherwise provided; example: ll's failure to make repairs does not exempt tenant from paying rent. EXCEPTION: IMPLIED COVENANT OF QUIET ENJOYMENT. If landlord breached, tenant could terminate lease and sue for damages. not breached by mere wrongdoer, must be by someone having "superior or paramount title."

O->A for 15 years, then to B. A leases property to T for 20 years, at the end of A's term, B successfully sues T for possession. T has a cause of action against A for implied covenant of quiet enjoyment 'cos B dispossessed T. Holder of paramount title has to actually interfere with T's possession. Wrongful evictions included.


Doctrine of constructive eviction: tenant can terminate lease b/c of wrongful actual eviction. Also occurs when LL wrongfully performs/fails to perform duty that LL is obligated to perform that results in tenant's substantial loss of the use and enjoyment of the leased premises.

Elements:

1) the LL must wrongfully perform/fail to perform some obligation that the ll is under some expressed or implied duty to perform.

2) As a result of the LL's commission or omission, there must be a substantial interference with the tenant's use and enjoyment of the premises

3) the tenant must give the LL notice of the interference and a reasonable oppty to remedy the interference.

4) If after such notice the LL fails to remedy the interference, the tenant must vacate the premises within a reasonable time.

Once the tenant has vacated the premises after a proper constructive eviction, tenant's obligation to pay further rents terminates. Tenant can terminate the lease and sue the LL for damages.

Louisiana Leasing v. Sokolow.

Proceeding to remove tenants b/c they're objectionable, they have children and !walk around! Disturbing the newer downstairs tenants. Ct has fun with case, decides Sokolow are there first. Noise not excessive.



Obligation to repair: at common law, UNLESS IN LEASE, LL not obligated to repair leased premises. Obligation to repair on tenant but did not include obligation to make improvements. Tenant obligated to make ordinary & nec. or minor repairs, tenant not obligated to restore or repair premises destroyed by "acts of God" or tenant's negligence. If premises destroyed by fire, etc., tenant not excused from obligation to pay rent. Now mostly LL makes repairs.

LL shall make all repairs and do whatever is necessary to put and keep the premises in a fit or habitable condition, maintain in good and safe working order and condition all electrical, plumbing, heating, sanitary, ventilating, air conditioning, and other facilities and appliances.



LL does not have duty to prevent/control crime in common areas)

Doctrine of illegality.
Brown- Ll leased premises in violation of housing code. Tenant sez, I don't owe any rent 'cos K signed was illegal in the first place. She did not pay the rent for an entire year, there was a leaky roof and pipes, lack of hot water, etc.

somewhat replaced by implied warranty of habitability. Implied warranty of suitability is implied warranty of habitability for commercial properties, does not extend to all jurisdictions.

Under implied warranty of habitability, there are three elements- breach of implied duty, Notice, and tenant can vacate or stay and not pay rent. We can have tenant sue for specific performance or pay rent into escrow until LL makes repairs. Lease is now more like K.
Also can make repairs and deduct (reasonable) $, or abate rent. Tenant can either abate by percentage of area or by fair market value. Tenant also has cause of action in torts under negligence, duty, breach, causation, and damages.

Melby, Sup Ct Ut '85, fell out of window due to design. Is this negigence, not implied warranty of habitability, it's not safe. Normally LL has no liability once it's delivered to the tenant. LL liable for the latent defect, & has duty of reasonable care in all circumstances.
When is ll liable? Spose you don't have anything BUT regular glass and there isn't any tempered glass, in some cases, LL liable. Glass broke, tenant hurt, we don't care if LL was actually negligent.
Robinson v. Diamond housing. Brand new Implied warranty of Habitability ('72) She moves in, LL does not make repairs, she doesn't pay rent and asserts lease was illegal, Diamond sez no valid lease, so you are a trespasser. They give her 30 days notice. She claims retaliatory eviction and ct sez you guys are stuck with her. Concept of retaliatory eviction is based on what LL intends to do with the premises after the the tenant is kicked out. ARe they going to relet it? ARe they going out of business? They'd have to to avoid retaliatory problem. Why is the LL kicking the tenant out? They could end up stuck with her forever.

Which things are rules of construction v. Rules of law? If it's a rule of construction, we take into account what the grantor intended, if it's a rule of law, no.
Tenant transfer of estate.
Assignments v. Sublease- under old rules, if a tenant transferred entire remaining term of lease, that's an assignment, any thing less is a sublease with a remainder. Now we do still look at the term but also look at the language of transfer and the intent of parties and did they say assignment or sublease.

Privity of K between tenants- obligations like right to pay rent and right to repairs pass to subsequent parties.

LL rents to Rafferty who then rents to Carolyn. Is Carolyn subletting from Rafferty? or is it an assignment. Relationship btw. LL & Rafferty-> privity of estate or K. Lease is transfer of usage of land. What did you convey- a term of years estate. Privity of estate or Privity of K. LL can sue Rafferty if Carolyn doesn't pay. What about Carolyn? Is it a sublease, or an assignment?
If it's a sub-lease, Rafferty retains estate, if it's an assignment, Carolyn has privity of estate w/LL and is obligated.
If estate has been assigned, can pursue both parties-Rafferty for Privity of K, Carolyn for privity of estate.
If Carolyn reassigns to Martha, we can sue Rafferty for privity of K, Martha can be sued for privity of estate, can't touch Carolyn.
If it's a sublease, then no relationship exists beyond the initial tenant.
Landlord rents to Tenant 1 who sublets to tenant 2. LL has passed estate (privity of estate) to tenant 2. Has contract with Tenant 1 so has to sue him for privity of K.
L lets to Tenant 1 who assigns to Tenant 2, again, pursues T1 under privity of K, T2 under privity of Estate.

ll does not want tenant subletting/transferring so they prohibit this in the lease. Cts allow transfer unless prohibited.

Kendall- can LL w/hold consent to assign lease. According to terms of lease, will not allow to assign. Ll demands increased rent and more onerous terms, majority rule said that parties agreed that LL had to give consent and can withold consent for any reason. Minority rule, ct prefers, can't withold consent without good reason. Type of tenant, adult novelty store or industrial can by commercially not reasonable.

Termination of a leasehold estate, unless written into lease (and usually is) nonpayment of rent does not give LL automatic right to terminate lease. Surrender and acceptance usually happens. LL may accept surrender implicitly by taking keys or entering premises. LL does not like to do this b/c may let tenant off the hook.

Sagamore, tenant moves out in breach of lease, do you have to sue as each month comes due? That's why acceleration clauses are in there, so that if you default the whole thing comes due.

Commonwealth building v. Hirschfield
holdover tenant. Ll has option, hold to another term or treat as a trespasser and evict. Courts are not very sympathetic to concept of holdover tenant and generally will not grant another term.
Landlord has to try to re-rent to mitigate damages, but if they do they can be deemed to have accepted surrender, and they do not want to do that. Surrender- tenant tries to give estate back to avoid ongoing obligation.