Rule Structure for Adverse Possession



ADVERSE POSSESSION

Requirements:

1. Actual possession

a. physically possess the land, the way a true owner would; either enclosing the property and treating as own, or if no fence, engaging in significant activities; enjoyment, cultivation, residence

b. Color of title – when an adverse possessor has a defective deed that purports to transfer the land, AP allowed as long as physical possession of part; in this case, occupation of any portion of the land described by the defective title is deemed to be actual possession of the whole lot described in the void deed. Must hv actual possession of some to claim the whole.

i. They both might have constructive possession

ii. Romero v. Garcia – Void deed is adequate for color of title. A deed is suff for the purpose of color of title even though it is void b/c it lacks a signature.

iii. Romero v. Garcia – Indefinite and uncertain description of boundaries may be clarified by subsequent acts by the pts.

2. Open and Notorious

a. Whether a reas inspection would have put the true owner on notice, what a reas inspection would reveal

i. Enclosing by a fence or wall is universally recognized, building structure, clearing land, driveway, using for parking, storage, garbage removal, planting and harvesting, picnicking

ii. “Unfurling his flag”

3. Exclusive

a. use is of a type that would be expected of a true owner

i. Nome 2000 v. Fagerstrom – where land is rural, lesser exercise of dominion and control may be reas.

ii. Nome 2000 v. Fagerstrom – go beyond mere casual and occasional trespasses, evince a purpose to exercise exclusive dominion over the prop.

4. Adverse or Hostile

a. Must show use was nonpermissive. Presumption that possession of another’s prop is nonpermissive.

i. If you give permission you have a license.

b. Three tests to determine the adv possessor’s state of mind

i. Objective: State of mind is irrelevant. All you have to show is the possessor lacked permission from the owner. Just look at the acts, if they meet the other reqs, then they have also met this. Majority.

1. Claim of right, without permission (requires AP to act toward land the way an owner could act)

a. Collapses w/ actual possession test. So if actual possession shown, claim of right is too.

ii. Subjective: Good faith – made a mistake but thought it was theirs

1. Pol for good faith req

a. Protects prop owners

b. Does not encourage stealing of others’ prop and infringing on others’ prop

c. w/o we would reward a knowing trespasser

d. w/o it = unwise b/c decreases incentives to plan correctly

2. Pol against good faith req:

a. rewards innocent possessors who mistakenly occupied;

b. promotes efficient land use

c. encourages use or prop and to care/inspect it

d. looks at totality of circumstances

3. Policy: see arguments under PE’s for presumption

iii. Subjective: Intentional dispossession

1. Adv possessor must be occupying pro owned by another and intend to take it from the true owner

2. If you are in the jx that requires this, if the person took land by mistake, then ( no claim

3. Policy: rewards wrongdoers

5. Continuous for the statutory period

a. How a true owner would use it for the statutory period

b. Tacking – successors can add the original adverse possessor’s holding period; must connected in privity with one another, meaning the original adverse possessors purported to transfer title to the successor

i. Brown v. Gobble, ownership period of Ds was irrelevant b/c Blevins (first APs) had already acquired possession on their own.

- Prop taxes in some jx must be paid

- Some jx – color of title

- All elements must be met for the statutory period (maybe the first owner uses it blatantly, the 2d owner starts sneaking on prop after dark, and starts using it secretly, so open and notorious might not be met)

- Standard: clear & convincing ev – Brown v. Gobble

Policy:

1. Land should not be taken by another – Law should not allow the land of one to be taken by another w/o a conveyance or consideration, merely upon slight resumption or probabilities.

a. Protects traditional familial and societal values

b. Reduces chances of spurious claims

EASEMENTS

1. Express Easements

2. Easements by Prescription

3. Easement by Estoppel (Irrevocable License)

4. Implied Easements by Prior Use – based on INTENT of parties

a. Implied Easements by reservation

b. Implied Easements by grant

5. Easements by Necessity

EXPRESS EASEMENTS

Express easements are created by explicit agreement between the parties.

1. Must be in writing, normally signed only by the grantor.

a. Reqs for the Burden to Run with the Land

i. Writing – a writing in the deed granting the property, can be earlier in the chain of title, doesn’t have to be included in subsequent deeds

ii. Intent – grantor must have intended for the easement to run with the land. Grantee must have intended for the benefit to run with the land.

iii. Notice - easements are binding on subsequent owners only if they have notice.

1. Actual – if the subsequent owners in fact know about the existence

2. Inquiry – if there are visible signs of use by nonowners to put the owner on notice

3. Constructive – is the easement or reference to it in the chain of title? if the deed conveying the easement is recorded in the proper registry and would be revealed by a title search

b. Appurtenant Easements. All Es are either appurtenant or in gross. Has a dominant and servient estate. Easement is attached to the dominate estate and runs w/ the land (passes to subsequent owners). Reqs for the Benefit to Run with the Land

1. Presumption for appurtenant easement

2. Policy: ppl presumed to take property w/ all the benefits attached to it

Kind contemplated by grantor

3. Manner for which it was created - Owner of E may prepare, maintain, improve or repair the way in a manner to an extent reas calculated to promote the purposes for which it was created.

i. Limitations. What were the express limitations?

ii. Intention. What intent can be inferred in light of facts and circumstances existing when it was created

Unreasonable burden - Owner may not create an undue burden on the estate

Subdivision - Subdivision will not cause an unwarranted inference w/ the rts of others who hv a similar rt of use.

i. Extension – Intent of grantor of easement important here

ii. Majority: E cannot be used to benefit non-dominant land

iii. Some: ok if use does not create additional burden on servient estate

Termination of Easements

a. Release – dominant owner releases by agreement in writing

b. by their own terms – for ex, if the deed conveying the e expressly states that it is to last for 10 yrs;

c. merger - when the holder of the servient estate becomes the owner of the dominant estate;

d. abandonment - requires non-use + act by the benefited party which show intent to relinquish rts

e. adverse possession or prescription – if the owner of the servient estate meets all the elements;

f. misuse – if used to benefit non-dominant parcel, etc. and the misuse cannot be enjoined

g. frustration of purpose – similar to abandonment; the purpose of the easement has become impossible to accomplish

h. superior title holder – owner who secured a loan w/ bank granted adjacent owner an easement, if bank forecloses, the E will be terminated

i. no notice – if a subsequent owner of the servient estate takes title to the prop encumbered by an express easement w/o notice of the easement

j. Estoppel – servient owner stands by while dominant owner constructs a garage directly across the way

PRESCRIPTIVE EASEMENTS (use) – See Adverse Possession

1. Elements same as AP (establishes title)

a. Actual USE (as opposed to possession)

i. Community Feed Store: The extent of acquisition must be determined by the extent of the actual use. Slight deviations from the accustomed route will not defeat an E, only substantial changes which break the continuity of the course of travel.

b. Open and notorious

i. O&N presumed to be adverse unless for public use.

c. Exclusive

i. Most cts drop this, but some retain it

d. Adverse/Hostile

i. Acquiescence (some)

4. Some: means owner did not assert rt to exclude by bringing trespass action

5. Others: LO must hv known a/b use and passively allowed it to con’t w/o formally granting permission

e. Continuous for statutory period

2. Community Feed Store: when a PE is claimed, the extent of the user must be proved not w/ absolute precision, but only as to the general guidelines consistent w/ the pattern of use throughout the prescriptive period.

3. Policy [similar arguments to good faith requirement]

f. In favor of presumption of non-permission (burden on owner to rebut & show she gave permission)

ii. Owner should hv objected & had a substantial period of time in which to do so

iii. Owner created legitimate expectations on the part of the prescriptive user that the use would con’t; appears consensual

iv. L/T acquiescence – looks like owner doesn’t care; implicitly consent

g. In favor of presumption of permission (burden on prescriptive user to rebut & show he did not hv permission)

v. Fairness – most neighbors allow periodic entry; acquiescence should be understood as implicit permission (implied consent) that defeats the adversity requirement

vi. Owners shouldn’t lose prop interests b/c someone uses their pro for long period

vii. Owner has expectation that property rts remain

viii. Promotes cooperation among neighbors

ix. Lets user purchase right if it is valuable to him/her

x. “Neighborhood accommodation exception” - Owner should be protected from PEs over large bodies of unenclosed land where owner could not reas know of passings over the land

h. Should the adverse user lose as a result of own neg?

xi. Yes – would increase incentive to plan correctly

xii. No – might cost more $ to undo neg, and if adverse user was O&N, the owner didn’t kno/care, didn’t do anyone harm

i. Should there be compensation for the PE when adverse user acted in bad faith?

xiii. Yes – whether it was in bad faith or not. If someone is using another person’s prop and the true owner finds out/doesn’t want to share anymore, the user should pay for what is not his

xiv. No – might put person out of bus; neighborly gesture

DEFENSE – LICENSE (use w/ permission)

1. Permission/license granted

2. Generally revocable at will

3. May become irrevocable (irrevocable license aka “E by estoppel”)

4. Claimant relied on that license by expending $ to build a house, a rd, etc

5. Owner had knowledge of reliance

EASEMENT BY ESTOPPEL (IRREVOCABLE LICENSE)

One may acquire an irrevocable license where:

1. Spent money/labor on the faith on the license in improving the way/road for other purposes connected w/ its use or has acquired an interest in the land in the nature of an easement

2. With knowledge of the licensor

3. Unconscionable to revoke by preventing its use

- Some cts may only grant this if there was fraud or misrepresentation.

- Benefit runs with the land if reasonably necessary for the enjoyment of the dominant estate (for implied, necessity & estoppel)

- Policy for:

o Prevents injustice: protects the interest of the licensee in relying on relationship w/ owner for continued access to the property.

o Prevents grantor from committing fraud

- Policy against:

o protect the grantor’s intent – granting an easement by estoppel is likely to contradict the grantor’s original intent.

o Licensee improvidently expended money in the hope of a continuance of a license

o Would prevent the burdening of lands with restrictions founded upon oral agreements

IMPLIED EASEMENTS BY PRIOR USE aka quasi-easement

Implied easements are recognized despite the absence of express agreement to create an easement. Sometimes used to effectuate the intent of the parties. Sometimes might contradict the actual intent and be implied by law b/c of policy reasons about the fair or efficient allocation of property rts in the context of the relationship established by the parties.

1. Common owner: Two parcels previously had a common owner and subsequent transfer separating ownership

2. [CO’s] Use was apparent and obvious at time of severance – if a grantee could, by a reas inspection of the premises, discover the existence of the use. Apparent does not mean visible.

3. [CO’s] Use was continuous (permanent) use prior to and at time of severance – not sporadic so the use would be known to the parties at the time of the grant

4. Necessity. The easement is necessity to the parcel retained by the grantor at time of severance

a. Implied Easement by Grant – in favor of the grantee - adds an additional rt to conveyance.

i. Grantor sells the dominant estate and retains the servient. Grantee claims that grantor intended for her to have an easement.

ii. Reasonable necessity or even convenience is the test

b. Implied Easement by Reservation – in favor of the grantor - requires higher necessity for the E

i. Grantor was in control of grant. Deed – construed vs. maker

ii. Grantor sells the servient estate and wants to claim an E for the benefit of the land he retains

iii. Reservation is in derogation of plain words of the conveyance

▪ Some jx require strict necessity

▪ Some jx don’t permit implied easements by reservation

▪ Others – even if by reservation, necessity is just one factor to consider

EASEMENTS BY NECESSITY

Reqs:

1. Common owner – servient and dominant parcels must have been under CO at one time

2. Strict Necessity – not just reasonable necessity by the standard implied easment

3. Use at time of severance

Lasts only as long as it is necessary. Terminates when necessity ceases.

Policy:

1. For easements by necessity:

a. To effectuate the intent of the parties

b. To promote the efficient utilization of property (by preventing property from being landlocked and taken out of the market)

2. Against easements by necessity:

a. Grantee knew she was buying a landlocked parcel

Finn v. Williams

- strict of absolute necessity required

- Rule: if, at one time, there has been unity of title . . . the rt to a way of necessity may lie dormant through several transfers of title and yet pass w/ ea transfer as appurtenant to the dominant estate and be exercised at any time aby the holder of the title thereto.

Exceptions to SoF that interests in land must be in writing:

- Easements by estoppel

- Easements by prescription

- Easements implied by prior use

- Easements by necessity

COVENANTS & EQUITABLE SERVITUDES

1. Issue – whether cov will run with the land. (Can A enforce the covenant against B not to…)

2. Policy – does the covenant violate public policy

a. Restrictv covs not favorites of the law. When interpreting, cts should gv effect to the intent of the pts as expressed in the plain language of the cov; but, when there is any ambiguity or substantial doubt as to meaning, restrictive covenants will be read narrowly in favor of the free use of property.

b. For: no discrimination; intent – it is no longer restatement’s position that courts should err on the side of unburdening property.

c. Against: freedom of property owners, promote free use of land

3. Covenants - contractual agreements by which they agreed to restrict the use of their own land for the benefit of their LL or neighboring owners.

a. Affirmative covenant – obligation to do something for the benefit of another owner or owners. Ex: duty of condo owner to pay fee to condo association to maintain the roof and other common areas of the bldg

i. Cts hv a hard time enforcing affirmative covenants

b. Negative or restrictive covenants – obligations restricting what one can do with one’s own land

c. Remedy: damages

4. Equitable servitude – Issues: creation, enforcement by assignees or 3rd parties, and termination. Can be implied by a general plan. A cov respecting the use of the land enforceable against successor owners or possessors in equity regardless of its enforceability at law

a. Remedy: injunction

5. Covenant Requirements

a. Writing – as part of a lease or deed transferring property rts

b. Notice – The servient/burdened owner must have notice that the land she purchased was restricted when she purchased the land. Notice of the benefited party is inferred b/c the person. (page 380 says many jx do not require notice)

i. Actual – if the subsequent owners in fact know about the existence

ii. Inquiry – if there are visible signs of use by non-owners to put the reas buyer on notice

iii. Constructive – a buyer has constructive notice if the cov was recorded in the registry or deeds prior to sale. is the easement or reference to it in the chain of title? if the deed conveying the easement is recorded in the proper registry and would be revealed by a title search

c. Intent to run w/ the land – the grantor’s intent for the cov to be binding on future possessors

d. Touch and concern – if it runs w/ the land; satisfied if appropriate to impose on subsequent possessors of the servient estate for the benefit of future owners of the dominant estate; the cov must concern the occupation or enjoyment of land

i. Burden side – On the burden side, an obligation T&C the burdened estate if it relates to the use of the land and the obligation is intended to benefit current and future owners of the dominant estates.

1. Restricts the use of the land

ii. Benefit side – On the benefit side, an obligation T&C the dominant estate if it improves the enjoyment of the land or increases its market value.

1. Restriction is intended to benefit the owner by increasing the value or attractiveness of the benefited land

e. Privity – this makes it possible for the benefit and burden to run with the land

i. Horizontal – Horizontal privity regulates the relationship btwn the original covenanting parties.

Mutual Privity – LL/T, when both pts have a possessory interest in the land

Instantaneous Privity- cov attached to both parcels the moment the owner of one parcel sells the other

1. deed

2. LL/T

3. E grantor/grantee

4. NOT – (1) neighbors that are not part of simultaneous conveyance; (2) grantor/grantee that are not made at same time as conveyance

ii. Vertical – Vertical privity is the relationship between the original covenanting pts and subsequent owners of ea parcel. It is present when the parties are successors in interest to the orig covenanting parties

1. NOT: (1) successors in interest who have a lesser duration than prior owner, such as LL/T; (2) neighbors who are intended beneficiaries (owner of land who is not a successor in interest to either orig covenanting pty seeks to enforce cov); (3) owners who derive their title from the grantor who imposed the restriction but who purchased their land b the sale of the parcel burdened by the cov (owners who purchased lot b4 the prop w/ the restrictive cov sold)

Modifying and Terminating Covenants (Defenses)

1. Changed circumstances: Someone burdened by a cov/eq serv can attempt to prove there has been a substantial change in conditions [inside the neighborhood restricted by the cov] such that the cov is no longer of substantial benefit to the owner of the dominant estate.

a. Rule: Ct will not enforce a restrictive cov where a fundamental change has occurred in the intended character of the neighborhood that renders the benefits underlying imposition of the restrictions incapable of enjoyment.

2. Relative Hardship: A cov will not be enforced if the harm caused by the enforcement, that is, the hardship to the owner of the servient estate, will be greater by a considerable magnitude than the benefit to the owner of the dominant estate.

3. Acquiescence: P himself tolerated previous violations of the cov by the owner of the servient estate

4. Abandonment: has tolerated violations of the cov by owners of other restricted parcels in the neighborhood covered by the covenant

5. Unclean Hands: P himself has violated the covenant

6. Against Public Policy

7. Estoppel: If dominant owner orally states the cov will not be enforced, and the servient owner relies upon it

8. Language in instrument: Cov may state it will terminated w/in a stated number of yrs unless renewed

9. Merger: If the burdened and benefited estate comes under ownership of the same person

10. Release: Burdened and benefited parties may agree in writing to terminate cov or release property from it

11. Prescription: O&N violation of cov w/o permission for the statutory period may terminate the cov by operation of the SOL

IMPLIED RECIPROCAL SERVITUDE

1. Common plan or scheme: deals w/ intent, notice, and privity that arises when common plan/scheme by developer to impose uniform restrictions on a subdivision deemed an implied promise to impose same restrictions on all retained lots. servitude may be implied in equity.

a. Are the ppl w/o it in the deed bound?

b. Did they have a clue it was a restricted subdivision?

2. Minority: CA and Mass won’t imply equitable servitudes b/c vio SoF

3. Policy:

a. For: buyers relied on it

b. Against: if it’s not in the deed, the properties shouldn’t be burdened by them

CONCURRENT OWNERSHIP

- Restraints on alienation: prevents the transfer of a prop interest from the current owner to others. Disfavored in the past, but trend to uphold if reasonable restraint.

1. Tenancy in Common

a. Each tenant in common has the right to posses the entire parcel.

b. Each has an “undivided interest”

c. Rt to transfer fractional interest. The fractional amt is important only for such questions as how the purchase price will be divided when the property is sold.

d. Presumption: if ambiguous, will be interpreted as T-in-C

e. Carr v. Deking: When a coT leases out the property, the other coT doesn’t have rt to eject the lessee. The lessee steps into the shoes of the leasing coT and becomes T-in-C with the other owners for the duration of the lease. Other coT’s may not eject, but may demand co-possession. Remedy: partition.

f. Kresha v. Kresha: One of several tens in common can lease his/her own interest to 3rd persons. The purchaser to acquires prop from a fee owner which the purchaser knows to be encumbered by an existing lease. So if a coT sells his interest encumbered by a lease, the land is subject to the leashold interest

2. Joint Tenancy = a joint interest owned by 2 or more persons in equal shares, by a title created by a single will or transfer, expressly declared to be a JT. And need the four unities.

a. Four unities at CL:

i. Time: JTs acquired prop at same time

ii. Title: JTs acquired prop by same instrument (deed or will)

iii. Interest: Same fractional share (unlike T-in-C)

iv. Possession: rt to possession of the whole

b. Each JT has the right to posses the entire parcel.

c. Right of Survivorship – no rt to devise interests. When a JT dies, her prop interest is immediately transferred to the remaining JTs in equal shares

d. Inter vivos transfer OK, can be one w/o co-T’s consent.

e. Split: whether mortgage, lease or other transfer of a lesser interest severs the JT.

f. Severance: JT who transfers who property interest can destroy the rt of survivorship of her fellow owners (do not need consent to transfer)

i. If A&B are JTs, and A sells her ½ undivided interest to C, the JT is severed and B’s rt of survivorship is destroyed. The result is B&C own as T-in-C.

ii. JT who wishes to destroy JT can convey interest to another who conveys it back.

iii. Only changes rel between selling & remaining owners, not between the relations of the remaining owners among themselves.

iv. Indestructible rt of survivorship: use life estate and remainders. The survivor will obtain the remainder and the prop in fee simple absolute.

1. Language: O to A and B as life Ts, with a remainder in A if A survives B, and a remainder in B if B survives A.

g. Tenhet v Boswell: A lease between one of the JT and the lesee does not sever the JT, but expires upon the death of the lessor JT.

i. Rule: A JT may, during his lifetime, grant certain rts in the jt prop w/o severing the tenancy. But when the JT dies, his interest dies w/ him, and any encumbrances placed by him on the prop become unenforceable against the surviving JT.

h. Arguments against the ruling in Tenhet

i. The JT lessor parted w/ all of her possessory rts for the term of the lease thereby destroying the unities of interest and possession and terminating it.

ii. Policy: Allowing severance may increase the alienability of property b/c few ppl will rent prop if they know the possessory rts will end when the lessor dies.

i. Mortgages

i. Maj: most states call the bank a lienholder. Mortgage does not sever JT.

ii. Min: older “title” theory, and the bank takes title to the prop when it grants the mortgage. Mortage considred to be transfer of ownership, severs JT.

3. Partition

a. Judicial Partition,: when file suit, ct phsycially divides property among co-owners

b. Voluntary Partition: owners agree among themselves to partition

c. In Kind = divides prop, gives T share; By sale = prop sold and proceeds divided

d. Can agree not to partition, as long as it is reasonable

4. Fiduciary Obligations – The benefits and burdens of ownership

a. Rent

i. Maj: T in possession has no duty to pay rent to nonpossessing T b/c all have = rt to possession

1. Exception: If T in possession has ousted nonpossessing T by explicit act by which one co-owner wrongfully excludes others from the jointly owned property.

2. Ousted T can collect pro-rata share of rental value.

ii. Min: T n possession must pay reasonable rental value of the premises.

iii. From third parties – Co-tenant entitled to proportionate share

iv. Coowners hv rt to lease interest w/o consent of other coowners

b. Mortgage, tax, property insurance

i. Duty to share basic expenses share b/c property will otherwise be lose in foreclosure

ii. If one doesn’t pay, can offset the amount owed when the prop is partitioned

iii. If co-owner exclusively possesses the premises, she must bear entire burden of expenses if the val of her occupation exceeds those pymts.

iv. Remedy – sue/partition and offset amt

c. Repairs and Improvement

i. Duty to share basic maintenance and necessary repairs

ii. No duty to share costs of major improvements, such as adding new room

iii. Maj: co-T who pays for these cannot collect directly from non-paying co-Ts b/c this don’t want to decide what is reasonable.

iv. If co-owner exclusively possesses the premises, she must bear entire burden of expenses if the val of her occupation exceeds those pymts.

v. Remedy - partition

5. Adverse Possession and Ouster (p 575)

a. Possessing cotenant cannot obtain AP against another unless possessing T has ousted by making it clear that he is asserting full ownership rts of the other Ts.

i. Must be an affirmative act. The reason is each coT has the legal rt to possess the entire prop; sole possession does not violate the prop rts of the other owners, and therefore does not constitute a trespass

ii. Constructive Ouster: Too small, abusive husband. Amts to denial of the rts of cotenant to occupy premises jointly, or the character of the property must be such to make JT occupancy impossible or impracticable.

ESTATES IN LAND

1. Present and future interest are created at the time of original conveyance, even though future owner has no present rt to the land

2. Created by sale (deed), lease (LL/T), will (devise), trust

3. Policy

a. Problem of the dead hand – arises when owners seek to control who owns prop long after they die

i. Pro future interest

1. Owners can promote their interests

2. Enhance alienability

3. Owners more willing to part w/ prop if they can control who owns it in the future

ii. Con future interest

1. interferes w/ freedom of future owners to control prop; undermines autonomy

2. efficient use and transfer of prop

3. clog up market for real estate by attaching numerous/multiple conditions – restricting usage and whether it can be bought/sold

4. transaction costs to remove restrictions may block deals

5. costs of renegotiating the prop arrangement may interfere w/ efficient readjustment of prop relations

6. change in conditions since the restrictions were imposed by grantors

b. Hierarchy – another problem is owners will hv wanted or unwanted effect of concentrating ownership in the hands of certain grps and excluding others.

i. Pro future interest

1. creates secure expectations

ii. Con future interest

1. caste system - would divide ppl into social classes, w/ some persons, but not others, entitled to enter particular markets

2. concentrate ownership in the hands of those who already own prop and descendants

3. Ppl would be excluded as more prop becomes tied up

4. Access to property would depend on heredity

5. Monopolies, centers of power

LIFE ESTATES

Policy:

1. Freedom to K or free disposition – should allow owners to create future interests

Vs.

Protect the interests of current owners in using the prop & having power to transfer it and protect efficient land use.

2. Presumption against forfeitures

a. Grantor’s intent vs. preference against future interest

b. Precatory (not meant to be legally binding, purpose language is precatory) language vs. future interest language

c. Covenant vs. future interest (favor the cov so title stays w/ current owner)

d. Fee simple subject to condition subsequent vs. fee simple determinable (b/c current interest is not automatically forfeited when the condition is violated.

e. Fee simple v. life estate

f. Exception: may not apply the presumption to charitable prop b/c the grantor may have intended for charitable use, it would raise prop val unfairly if changed purpose.

i. Cy Pres doctrine carries out settlor’s charitable intent; income used for another charity. Must determine whether intent was general or particular.

3. Args for Presumption against forfeitures

a. Promotes interest of the grantor in controlling future use and disposition of prop

b. Creates security for neighboring prop owners who may benefit by the condition

c. Burdens grantors to be clear if they intend to retain a future interest in the prop

4. Args against Presumption against forfeitures

a. Promotes interest of current owners in controlling prop in their possession, givin them greater freedom to change land uses as economic and social vals change

b. Promotes social interests in deregulating econ activity to allow prop owners the freedom to shift prop to more valuable or desirable uses

c. This may actually futher the grantor’s interest b/c grantor clearly would make it clear if she intended to retain a future interest.

Fee Simple Absolute

1. Fee simple or fee simple absolute = prop ownership w/o an associated future interest; owner has present right to possess and use the property, the rt to sell it or give it away, and the right to devise it by will or leave it to her heirs

a. Fee simple is the presumption unless the conveyance states otherwise. So, if grantor fails to indicate, the grantee receives all the ownership rts of the seller

Defeasible Fees

1. Defeasible fees: present interests that terminate at the happening of a specified event, other than the death of the current owner

a. Two categories:

i. Whether the future interest is in the grantor or in a 3rd party

ii. Whether the future interest becomes possessory automatically when the stated event occurs or becomes possessory only if the future interest holder chooses to assert his prop rts.

2. When the future interest belongs to the grantor, 2 types of defeasible fees can be created

a. Fee simple determinable. Automatic transfer of interest upon the occurrence of a stated event, or upon an event not certain to occur. If the condition is violated, ownership automatically shifts to O or her heirs or O’s devisees. The present interest is called fee simple determinable and the future interest is called a possibility of reverter.

a. All of these create a fee simple determinable in A with the possibility of reverter in O or his heirs or devises. Interpreted as evidence of grantor’s intent to cut off ownership rights automatically when the condition is violated or met. When violated, automatically shifts back to O.

b. Fee simple subject to a condition subsequent – current interest – transfer upon grantor’s assertion of prop rts. This gives the grantor discretionary power to terminate the grantee’s estate after the happening of a stated event, not certain to occur. In other words, grantor may choose whether to retake the prop at the time the condition is violated.

1. Strictly construed; will not be interpreted to create condition if language will bear any other interp

2. Right of entry, aka power of termination– future interest

3. If she does not assert her rts, ownership stays w/ the current owner

c. Differences between Possibilities of Reverter and Rights of Entry:

Major diff btwn possibilities of reverter and rts of entry involves the SOL for AP.

4. For possibility of reverter, SOL starts running immediately, and if the holder of the possibility of reverter does nothing for the statutory period, title will shift back to the current possessor.

5. With rt of entry, does not become possessory until holder asserts a rt of possession; if the holder of the rt never asserts the rt, the title will remain w/ the present estate owner.

iii. Modern approach – treat them the same under one of two theories:

1. Doctrine of laches to prevent the holder of a rt of entry from waiting too long to assert her rt of entry. Prevents recovery when an unreas delay in asserting legal rts unfairly prejudices another.

2. Start the running of SOL at the moment the condition is violated, giving owner of a rt of entry a reas time to assert the rt after the condition is violated. If the owner waits too long, the interest is destroyed w/o re to the SOL for AP. Makes rts of entry effectively similar, if not identical to, rts of reverter.

3. When the future interest belongs to a third party. When the future interest in a defeasible fee belongs to someone other than the grantor.

d. Fee simple subject to executory limitation – present interest - any conveyance that transfers ownership to a 3rd party on the happening of an event (other than owner’s death)

e. Executory interest – future interest

f. Identical to the fee simple determinable, w/ ownership shifting automatically on the occurrence of the contingent event, except that ownership shifts to 3rd party rather than reverting to grantor.

Life Estates, Reversion, and Remainders

1. Life estate: means A owns prop during his lifetime. The future interest following a life estate can be either in the grantor or in a 3rd pty.

a. If the prop reverts to the grantor when A dies, the future interest is called a reversion.

b. If grantor designates a third party to obtain ownership when A dies, the future interest in the 3rd pty is called a remainder.

2. Diff between fee simple and life estate:

a. Fee simple, owner can choose who will own prop after her death by will or by the state intestacy statute. In contrast, life estate owner has no rt to determine who owns the prop on her death since the ownership automatically shifts to the reversioner or remainder holder.

b. If a life estate owner A sells prop to B, B gets exactly what A had, an estate for the life of A. Thus, when A dies, the prop will shift to the reversioner or remainder holder. B’s interest is called a life estate for the life of another.

i. Not necessary to mention the reversion in conveyance.

ii. An executory interest divests a present estate while a reversion or remainder takes effect at the “natural” termination of the preceding estate, such as the death of a life tenant holder.

iii. A life estate may be subject to a divesting condition that would cause the interest to shift b4 the owner dies; the future interest would be an executory interest.

Contingent and Vested Remainders

1. Future interests following defeasible fees best either in the grantor (possibility of reverter or rt of entry) or in a third party (executory interest).

2. Future interest following life estates also may best in either the grantor (reversion) or in a 3rd pty (remainder).

3. Two types of remainders:

a. Contingent remainder. Contingent if one or both are met:

i. The remainder will take effect only upon the happening of an event that is not certain to happen, or

ii. If the remainder will go to a person who cannot be ascertained at the time of the initial conveyance.

1. Maj law: contingent remainders are not destructible

b. Vested remainder. Include any remainders that are not contingent; remainders to person who are identifiable at the time of the initial conveyance and for whom there are no conditions precedent (conditions that must occur b4 they will hv the rt to control the prop) other than the natural termination for the prior estate when the life estate owner dies. Three kinds.

i. Absolutely vested remainders. Remainder not subject to change.

ii. Vested remainders subject to open. May be divided among persons who will be born in the future.

1. Under the rule of convenience, cts will close the class when A dies so that the children can take possession at A’s death, and don’t hv to share w/ any after-born kids

iii. Vested remainders subject to divestment. May be destroyed by an event that occurs after the orig convey

Destructibility of Contingent Remainders

1. Contingent remainders destroyed if they did not vest immediately after the termination of the prior estate.

2. Or, destroyed by merger.

3. Modern approach holds that contingent remainders are indestructible.

Regulation of Future Interests

1. Three kinds of legal rules regulate future interests

a. Presumption against forfeitures

b. Ownership interests must be in the form of one of the established estates – to create an effective temporal division of prop rts

c. Legal rules regulate the substance of future interests by preventing owners from creating certain kinds of future interests

i. Prohibitions: rule against perpetuities and the rule against restraints on alienation are intended to promote the relatively free transfer in the mrkt place.

ii. Others protect interests in equality and liberty.

Trusts

1. Trusts are equitable interests in property

2. Ex: X in trust for A for life, then to A’s children

3. Grantor (the settlor) conveys prop to a trustee to be managed for the benefit of the beneficiaries. Trustee has legal title and the power to sell the property (the trust assets) and reinvest the proceeds in other assets if in the best interest of the beneficiaries.

4. Fiduciary obligations: trustee has fiduc obliges to act in the best interest of the beneficiaries. Subject to liability for mismanaging.

Estates System: Freehold Interests

| | |Future Interest |

|Present Interest |Word Often Used to Create the |In Grantor |In third person |

| |Interest | | |

|Fee simple absolute |“to A” |--- |--- |

| |“and her heirs” | | |

|Fee simple determinable |“so long as” |Possibility of reverter |--- |

| |“while” | | |

| |“during” | | |

| |“until” | | |

| |“unless” | | |

|Fee simple subject to condition |“provided that” |Right of entry for condition broken |--- |

|subsequent |“on condition” |(or power of termination) | |

| |“but if” | | |

|Fee simple subject to executory |“until (or unless) …, then to …,” |--- |Executory interest |

|limitation |“but if …, then to …,” | | |

|Life Estate |“for life” |Reversion |Remainder |

RULE AGAINST PERPETUITIES

“No interest is good unless it must vest or fail not later than 21 yrs after some life in being at the creation of the interest.”

1. RaP invalidates future interests that may vest too far into the future. Future interest are invalid unless they are certain to “vest” or fail to vest w/in the lifetime of someone who is alive (“in being”) at the creation of the interest or no later than 21 yrs after her death.

a. No interest is good unless it must vest, if at all, no later than 21 yrs after the death of some life in being at the creation of the interest.

b. Purpose: to prevent remoteness of vesting and thereby leaving prop in control of the living rather than in control of the dead hand.

2. Policy:

a. Limiting dead hand control: the policy behind the RaP.

i. The rule places some limits on the ability of current owners to create future interests. (just as the rule against restraints on alienation limits/prevents the owners from blocking the transfer of property after they have let go of it.

ii. Arguably promotes the free transfer of property in the mrktplace by limiting the creation of future interest.

iii. Attempts to promote alienability by limiting the powers of present owners to control the future use of their property. Rule = compromise between:

1. the pol of allowing owners to determine who will own prop in the future and under what circumstances and

2. the policy of freeing owners from control by prior owners so that current owners can control both the use and disposition of their prop

3. How to apply the rule. Three steps:

a. Identifying interests subject to the rule. Determine what future interests have been created.

i. Applies only to nonvested interests.

ii. Exempt from the rule: (b/c these future interests are “good”

1. Reversions (following life estates and leaseholds)

2. Possibilities of reverter

3. Rts of entry (following defeasible fees)

a. Note the name of an interest is fixed when it is created. Thus when an owner of a rt of entry transfers the interest to another person, it remains a rt of entry and does not change into an executory interest, even though it is held by someone other than the grantor or her heirs

4. Vested remainder (absolute or subject to divestment)

a. These are the only interests in third parties that are exempt from the RAP

iii. Subject to RAP:

1. Executory interests

a. Aka all future interests in third parties following defeasible fees

b. Option to purchase is akin to executory interests b/ they are rts to acquire prop in the future ( usually subject to rule

i. Preemptive rts, or rts of first refusal, similarly allow the holder to purchase prop in the future whenever the current owner decides to sell.

1. Split – some courts hold preemptive rts are/are not subject to the rule

2. Contingent remainder

a. Contingent future interests in 3rd pts following life estates (aka remainders) b/c there is a condition precedent to their vesting, or if they are allocated to persons unascertained at the time of the orig conveyance creating them.

3. Vested remainder subject to open

a. Subject to rule b/c some of the interests to the class members are vested and some are contingent (those belonging to persons not born at the creation of the interest)

b. These are partially contingent, and therefore subject to the rule.

iv. Testing the interest to see if it may vest, if ever, too far into the future: seek a validating life. If the rule applies, figure out if there is a chance that the executory interest or contingent remainder will “vest” more than 21 yrs after the death of any person alive at the creation of the interest. The rule invalidates interests that are not certain to “vest” w/in 21 yrs of the death of some “life in being” at the “creation of the interest”

1. Test: Is there any chance the interest may vest outside the perpetuities period.

2. The perpetuities period – begins at creation of the interest and ends 21 yrs after the death of the last person alive at the creation of the interest. The time w/in which the interest must vest.

a. Creation of the interest:

i. The future interest is created by conveyance (sale) at the moment of the conveyance.

ii. Created in a will at the moment the testator dies

iii. Created in a trust at the moment the trust doc is signed and the trust created if the trust is irrevocable, and if it is revocable, at the moment it become irrevocable

b. Vest – the moment when the contingency occurs that renders the interest certain to come into possession

i. Executory interest - vested at the moment the contingency occurs. At that moment, the future interest becomes possessory since the executory interest automatically takes effect when the contingency happens.

1. Ex: O to A so long as used as residential purposes, then to B. Executory interest will vest in B, if ever, at the moment the prop is used for non-res purposes.

ii. Contingent remainder vests at the moment the contingency disappears, regardless of whether the remainder becomes possessory at that moment.

iii. Future interests in grantor thought to be vested at moment of creation. (such as possibilities of reverter, rts of entry, and reversions) b/c an owner of a fee simple absolute who conveys a fee simple determinable is caring out a present estate from a fee simple absolute which is clearly vested; the poss of reverter is part of that vested interest not given away.

c. Lives in being. Look for a validating life, a person w/in whose lifetime (or not later than 21 yrs after that person’s death), the interest is certain to vest, if it ever does. If you cannot identify a validating life, there future interest is void.

i. The period is actual 21 yrs and 9 months b/c the time of gestation is added onto the 21 yrs.

3. Remedy for violating the RAP. If the future interest is invalid, the remedy is to strike out the offending language.

a. Class gifts. Partially valid and partially invalid. O to A for life, then to the grandchildren of A. If one grandchild is alive at the time of conveyance, this creates a vested remainder subject to open.

1. Traps p. 540

a. Unborn Widow

b. Fertile octogenarian

c. The endless will contest

LANDLORD/TENANT LAW

Leasehold Estates

Types of Tenancies – LL/T rels involve a division of prop interests btwn the LL and the T

Commercial and Residential Tenancies

a. Commercial Ts more likely to have suff bargaining power and expertise to shape and K arrangement in their best interest

b. Res Ts less likely to bargain for appropriate terms in the K that reflect their justified expectations

c. Transfer of leasehold: LL can sell prop and the leases get transferred as long as the new LL has notice. Old LL can transfer his interest, the reversion.

Categories of Tenants – Four types – term of years, periodic tenancy, tenancy at will, and tenancy at sufferance.

1. Term of Years – lasts for a specified period of time (any length) determined by the parties

a. End automatically at the agreed-upon time

b. May be terminated before the end of the fixed period on the happening of some event or condition stated in the lease agreement

c. Reversion – future interest retained by the LL

d. Remainder – future interest retained by a 3rd pty

e. Death of either pty doesn’t terminate the tenancy. LL is not entitled to evict the tenant b4 the end of the term. Exception when T breaches a material term in the lease, like not paying rent.

f. If terms of yrs is up, and the LL cashes the next month’s rent, most jx treat as periodic tenant (since rent was paid monthly)

2. Periodic tenancy – renews automatically at specified periods unless LL or T chooses to end the rel.

a. There may be no written lease or specified end to the tenancy.

b. Month-to-month tenancies are a type of periodic tenancy. They renew at automatically ea month if neither pty notifies the other that he intends to end the rel.

c. Notice req b4 either pty can terminate the rel. Many req one month’s notice.

d. Death of either the LL or T does not terminate the tenancy. The heirs/devisees can terminate.

3. Tenancy at will – similar to periodic tenancy except that it can be ended w/ no notice by either pty

a. Many states hv effectively abolished by req notice b4 a tenancy can be terminated; if the required notice is the same as that for a month-to month tenancy, no real difference distinguishes the two.

b. Diff notice periods, the distinction remains significant

c. Traditionally, the death of either the LL or the T terminates the tenancy at will. This differs from periodic tenancies or the term of yrs and may have important consequences.

i. Although the LL still needs to give the statutorily required notice to evict, the LL may have an absolute right to do so since the tenancy is at an end.

4. Tenancy at sufferance. A T rightfully in possession who wrongfully stays after the end of a lease term is called a tenant at sufferance, or a holdover tenant. (as opposed to a trespasser, who never had a rt to possess prop)

a. Eviction proceeding and a ct judgment are generally required to evict a tenant, including a tenant at sufferance. A LL who accepts rent checks fr a holdover T may be held to have agreed to a new tenancy calculated by the rental pymt schedule (monthly checks creates a month to month tenancy)

b. If LL wants to treat as holdover T, it is safest not to cash the check. And LL will be entitled to damages for the period the holdover occupies the premises. And sue for possession

i. LL can sue immediately for possession and refusing to accept proffered checks, or cashing the cks and writing on the back that the LL is not agreeing to the tenancy but using the ck to cover the rental val of the prop from the tenancy in sufferance.

ii. Some states: cashing rent check creates new tenancy

c. Alternatively, LL can accept new tenancy relationship.

i. Maj: LL can accept the new periodic tenancy based on the rent payment

ii. Min: New term of the same length as original lease is created.

Tenant Breaches and Refuses to Leave

a. Self-Help – Almost all states hold LL may not use self-help, must evict through ct proceedings

a. Summary procedure allows a relatively quick judicial process for a ct order allowing the LL to recover possession. LL can also get immediate temporary restraining order.

b. Policy: Self-help is likely to become violent. LL might be mistaken about this right to possession, and he should not be the “judge of his own rights.”

b. Summary process – allow relatively fast judicial determination of the LL’s claim of a rt to regain possession of her prop

a. Statutes called forcible entry and detainer, unlawful detainer, summary proceedings, and summary ejectment.

b. Now, Ts allowed to raise some defenses during summary proceedings, such as implied warranty of habitability. Some states, do not allow.

i. Treats the undertakings of T and LL as independent, rather than dependent covs.

ABANDONMENT

a. Accept the T’s surrender – means the LL agrees that T will not be legally obligated to pay the future rent.

i. By moving out b4 end of lease term and ceasing pymts, T makes implied offer to the LL to end the term of yrs.

ii. Not relieved of all responsibility, LL can still sue for back rent. Or due immediately w/o waiting till end of lease term for damages for breach of lease (different from future rent).

iii. Damages measured in amt LL lost, which is the agreed-upon rental price minus the fair mrkt price, not the remaining rent. If the rental price is the same or below the mrkt price, damages are zero.

b. Re-let on the T’s account. If LL refuses to accept T’s surrender, LL may look for new T and re-let the apt on T’s account.

i. When new T is found, LL may sue former T for difference btwn old rental price and new rent received, if the (reas) new rent is lower than the orig rent.

c. Wait and sue for the rent at the end of the lease term vs. mitigate damages

i. Traditional rule was no duty to mitigate. Now, most states say there is a duty to mitigate. The LL sitting around waiting for unpaid rent to accumulate increases damages. Sates that require mitigate damages place an obligation on the LL to act reasonably in seeking another T.

ii. Policy behind the traditional rule inconsistent w/ the traditional measure of damages that the LL is entitled to receive if the LL accepts the T’s surrender and sues immediately.

iii. Most cts say there is also a duty to mitigate in commercial leases

d. Acceleration clauses

i. LLs contract around the duty to mitigate by an “acceleration clause” making the rest of the rent due immediately if the T abandons the premises or otherwise breaches the lease in a material way. Form of liquidated damages. Allows to obtain rest of rent AND to rent out to another T.

1. Some cts: enforce b/c pts agreed, but won’t if it constitutes a “penalty” or if “unconscionable.”

2. Most cts: do not allow to waive the duty to mitigate since reletting would avoid damages and give the LL what he expected to receive

Duty to Deliver Possession

1. Maj: LL has the duty to deliver actual possession to the new T. If there is an old T there, the LL must evict.

a. The shut-out T may terminate the lease and recover damages, or affirm the lease and w/hold rent, and recover cost of temporarily finding other housing.

2. Min: LL only needs to deliver the rt to possession, or legal possession, not actual. The new T has to evict the holdover T.

ASSIGNMENTS AND SUBLEASES

1) When the Lease is Silent - GR: Tenant entitled to transfer possessory interests in the premises by assignment or sublease

a. Policy: alienation of property

2) When the Lease Requires LL’s Consent

a. Language: “no subletting w/o the LL’s consent” or “subletting allowed subject to the LL’s consent”

b. “Sublet” refers to “sublet or assign” b/c modern trend to focus on intent of the parties.

3) Assignment: conveys all T’s remaining prop interests w/o retaining any future rts to enter the property

a. T’s covenants run with the land. Assignee responsible directly to LL for undertakings under the original lease.

b. LL may sue T under privity of K for unpaid rent b/c T remains in K relationship w/ LL. Assignment does not relieve T of obligation to pay rent to LL.

c. LL may also sue assignee under privity of estate directly for unpaid rent because assignee’s interest “touches” that of the LL’s reversion. Assignee directly liable to LL for unpaid rent since covs to pay rent runs w/ the land.

d. T may sue assignee under privity of K.

e. Privity of estate: why the assignee is directly liable to the LL for covenants made by the original T to the LL. Since T has given up all interests in the prop, LL and assignee are thought to share interests in the property.

f. Privity of K: LL and assignee are not in privity of K since they did not reach an agreement w/ ea other.

g. It T assigns but reserves the rt to reenter in case assignee defaults, some cts treat this as an assignment, some treat as sublease.

4) Sublease: T retains some future interest or the rt to enter the property. Tenant retains the rt to regain possession, or T retains rt of entry if subT violates one or more terms of the sublease agreement.

a. Covenants do not run w/ the land as real covenants. But, they can prob be enforced as equitable servitudes, as long as subT has notice. Cts likely to find subT on inquiry notice since the reas subT would inquire whether T has promises to the LL.

b. LL may sue T, under privity of K, who remains contractually bound to pay rent.

c. LL has no rt to sue subT, because no privity of K or estate, unless subT expressly promises the T to pay rent to the LL. But, the LL can sue subT as a third-party beneficiary of the K made btwn T and subT.

d. But, LL can evict T (sue for possession) and end the leasehold, thereby terminating the subT’s rt of possession since the subT can possess only what the T has a rt to possess in the absence of a separate agreement w/ the LL.

e. Whether LL can sue subT for injunction ordering subT to comply w/ paying rent.

i. Some courts will not grant injunction b/c pymt of rent is like pymt of damages

ii. Other cts will grant injunction b/c it is enforcement of aff cov.

f. T can sue sublessee: under privity of K and estate

g. Subletting for more than original rent: T remains liable for only orig amt due to LL

Commercial Setting:

Kendall v. Ernest Pestana, Inc.: Ct decided that the traditional rule that the LL could artibtrarily w/hold consent would no longer apply in commercial settings. In response to this case, Ca legis adopted the implied reasonableness test for commercial leases, but pts are substantially free to K to the contrary.

Residential Setting:

Slavin: LL may w/hold consent unreasonably or unequivocally. Residential diff than commercial. Reasons for imposing reasonableness req on commercial: (1) comm LLs may exercise their pwr to w/hold consent for unfair financial gain; (2) the necessity of reasonable alienation of comm bldg space has become paramount in our ever-increasing urban society; (3) in residential, there isn’t a great concern about reas alienation.

Structure of LL-T litigation. LL/T are involved in an ongoing K rel – the LL has transferred to T rt to possess the prop in return for periodic rent pymts.

a. LL sues for:

i. pymt of back rent

ii. possession of the premises aka eviction

iii. damages resulting from T’s breach, such as repairs

b. T may raise defenses:

i. that he was entitled to do so b/c the LL breached first

ii. c/claim from LL’s breach of lease for damages

c. Remedies:

i. Some courts measure by reduced val of leasehold caused by breach and order an abatement (reduction in rent).

ii. Other cts measure damages independent of the rental value

iii. All cts allow T to recover if LL acted neg and physical harm resulted

iv. T can petition for injunctive relief, ordering LL to fix apt to comply w/ housing code

COVENANT OF QUIET ENJOYMENT AND CONSTRUCTIVE EVICTION

I. CQE: T has rt to QE of the premises, w/o interference by the LL. This cov may be expressly provided, but it is always implied in the lease.

A. Historically: covs in the lease were independent. So, if LL didn’t do repairs, T could not w/hold rent. T could only sue LL for damages.

B. Early CL: CQE became an exception. Cts implied CQE, making T’s duty to pay rent dependent on the LL’s performance of the CQE.

II. Breach of CQE

A. Actual Eviction - possession: when T is physically evicted from entire leased premises by LL or his agent ( T’s obligation to pay rent ceases. Having been deprived of possession of entire premises, T may treat lease as terminated, and liability to pay rent is discharged.

i. If 3rd pty causes interference, it’s not a defense to the nonpymt of rent.

ii. Remedies: terminate lease, pay no more rent, damages

a. Partial Eviction: T evicted from any portion of the leased premises, T’s rent obligation abates until possession is restored to him. Traditionally, T could w/hold all the rent b/c LL shouldn’t be able to apportion his wrong.

i. Policy behind this is that T may not be able to find another place to live, it is not practical.

ii. Remedies: stay in possession and pay no rent until possession is restored; abatement

B. Constructive Eviction – use and enjoyment: Substantial interference w/ the T’s use and enjoyment of the leased premises through the fault of the LL, so T can no longer enjoy premises as pts contemplated. T has possession of the premises, but the use and enjoyment is disturbed – functionally equivalent to physically barring T from the premises. Here, the Makes T’s obligation to pay rent dependent on the LL’s performance of CQE.

a. Substantial Interference: T’s use and enjoyment must be substantially interfered with. Measured by objective reasonable person.

i. Factors: purposes for which the premise was leased, foreseeability of this interference, potential duration of the interference, the nature and degree of harm caused, and the ability to abate.

ii. LL’s Defense: LL disclosed prior to lease, T knew of interference and therefore waived

b. By LL/LL’s agent/someone under LL’s control: cannot be act of 3rd party, unless the acts were inducted by, or committed w/ express/implied consent of the LL.

i. LL responsible for other Ts’ acts if LL has the legal ability to correct the conditions and fails to do so.

c. Notice: T must give notice to LL re objectionable conduct, and LL must fail to remedy situation w/in reas time.

d. Prompt abandonment: Traditional view: T must move out w/in a reas period of time. T cannot remain in possession AND refuse to pay/receive damages. If T stays there, then there is no eviction, and the rent obligation continues. Until you leave, you are not entitled to remedies. T takes a chance by vacating b/c the court may not find that the circumstances amt to constructive eviction.

i. Restatement view: Rejects that T abandon premises b4 claiming CE. T has choice to terminate/vacate OR stay and receive damages or rent abatement. This is b/c T may not be able to find decent housing elsewhere.

1. Define CE as “more than significant” interference, rather than “substantial”

2. LL liable for acts of 3rd pts performed on prop in which LL has an interest, conduct that could legally be controlled by him.

e. Remedies: T must vacate to stop paying rent or to receive damages. Or, rent abatement or damages if the T stays.

C. Partial Constructive Eviction

a. LL’s actions have substantially deprived T the use and enjoyment of a portion of the property. T may con’t lving in the remaining part of the premises.

b. Rationale: Makes no sense that a family must move out of the entire place before it can seek justice and fair dealing.

c. Remedy: Rent abatement

IMPLIED WARRANTY OF HABITABILITY (IWH)

- Historically, LL’s lacked duty to repair/maintain (exc: latent/hidden defects). If T wanted warranty, T had to bargain for it. Also, independent obligations, not dependent.

- Now, most states got rid of the lack of duty to repair/maintain and the independent cov rule.

1. Defense of IWH: LL has a continuing obligation to maintain the premises in accordance w/ all applicable law. Implied covenant of habitability and fitness in leases of urban units. Dependent cov doctrine applies, so T is relieved of obligations when LL breaches this. Continuing duty of maintenance.

a. Violation of some code or standard that affects habitability of the premises

i. Standard = local housing code; or Rest. 2d “unsafe or unhealthy for T to use as a residence”; or general community standards of suitability for occupancy.

b. Notice to LL

c. Time to repair

d. Cts allow this defense, even though it seems to contradict the summary process b/c Ts hv a defense to a claim for possession.

2. Policy for:

a. T does not have time/knowledge to inspect premises

b. LL knows more a/b defects and in better position to fix them

c. Housing code enforcement will improve living conditions.

d. Ts have less bargaining power than LLs, and LL will take adv.

e. Poor housing detrimental to society.

3. Policy against:

a. Places burden on LL ( increased rents, abandonment by LL, less investment in new housing ( poor will lose housing

4. Remedies:

a. Rescission (termination), or the rt to move out before the end of the lease term.

i. The LL’s vio of his K obligation to provide a habitable apt entitles T to stop performance of her K obligations. Thus, T may repudiate K and move out b4 end of the lease term w/o being liable for rent for the months remaining on the lease.

ii. This is the case when br of warranty of habitability results in a material change, even when it would not amt to constructive eviction.

b. Rent withholding. (continue lease)

i. When LL breaches implied warranty of habitability, T ordinarily has rt to stop paying rent and con’t living in the premises, and T’s failure t pay rent does not constitute a breach of the t’s contractual obligations. Rather, the T hd a legal rt to stop paying rent under the circumstances.

ii. Notes, this distinguishes the implied warranty of habitability from constructive eviction doctrine.

iii. Ts advised to notify L before w/holding rent. Keep money in an escrow acct.

c. Rent abatement. (continue lease)

i. When LL violates implied warranty of habitability, T entitled to reduction in rent.

ii. T can sue for declaratory judgment, where LL has to reimburse T for all or a portion of the rent previously paid to the LL during period of violation.

iii. Some states apply fair market value test – the amt rent owed to LL during period of vio based on fair market val of premises “as is” or w/ defect.

d. Repair and deduct. (continue lease)

i. T may be able to pay for needed repairs herself and then deduct the cost of repairs from the rent paid to the LL.

e. Injunctive relief, or specific performance.

i. Suit to order LL to comply w/ housing code by making needed repairs.

f. Administrative remedies.

i. Local housing code may include procedures for enforcement by local housing inspectors. Injunctive relief, civil damages.

g. Criminal penalties.

i. Statutes may provide for fines, imprisonment for LLs who fail to fix dangerous or unlawful conditions in their apt.

h. Compensatory damages.

i. Ts bring claims for compensatory damages as independent lawsuits or as counter claims. Damages may seek an amt of $ the exceeds the rent rather than a reduction if there was harm to personal property, or if T seeks reimbursement for costs of staying in hotel while premises were uninhabitable.

ii. Ordinarily, cannot exceed the agreed-upon rent.

5. LL c/Defense: Waiver of IWH

a. No waiver of substantial breach of IWH. T can waive minor defects, but it is against pub policy to waive unsafe/unsanitary defects.

6. Illegal Lease

a. If the LL knew the unit was in substantial violation of the housing code, the lease is an illegal K if the code prohibits rental of a unit in vio of the code. The, the LL cannot enforce any covenant to pay rent. LL can only sue for the fair rental value of the premises as is.

b. Many jx apply IWH today even if premises was uninhabitable at inception of lease.

7. IWH & Commercial leases

a. Modern view: covenants in commercial leases are dependent rather than independent.

i. While a few states find an implied warranty of suitability for intended purposes to comm leases, most still do not do so, holding that commercial leases have no implied warranties unless they state so explicitly.

RETALIATORY EVICTION

1. Retaliatory Eviction: LL might try to evict T or refuse to renew lease after T has reported violation of housing code or T involved in union incidental to the tenancy.

a. Discriminatory against tenant

b. Following T’s report of a violation

c. Then burden shifts to LL to prove reason was not retaliatory.

2. Policies:

a. Furthers legislative policy underlying housing codes. Enforcement of codes depends on Ts reporting them.

b. Allows Ts to exercise rts. Ts should not be punished for claiming benefits afforded by health and safety statutes passed for protection.

3. Remedies:

a. T can stay until retaliatory purpose has dissipated.

b. LL can prove he has legit bus justification for taking unit off mrkt

PUBLIC LAND USE

ZONING

1. Purpose: to prevent harm from incompatible uses by dividing city into zones

2. Sources of Zoning Power: States have enabling acts that allocate authority to local governments. It is a valid exercise of police power under the Constitution

Non-conforming use

1. Amortization schedule: the place will fade out. they give the non-conforming entities a certain period of time to recoup the investment. And after that time you have to go out of business.

a. Didn’t fade out b/c those little grocery stores in areas turned residential b/c those store thrived.

b. Amortization supposed to be reasonable period of time to allow ppl to recoup their investment

2. Variance: certain set backs for sidelines (can’t build w/in 5 ft of neighbors common prop line, etc). if your garage is a foot short from a 2 car garage, maybe you can go to the ct and ask for variance

a. Tests are: exceptional and undue hardship

b. Variance will not be a detriment to the area

3. Special exception: built into zoning law when passed. Churches and schools, fire stations. Certain requirements must be met b4 city gives permission for church to be built there, so you can’t hv 5 churches in a row.

a. Built into zoning law

b. You can anticipate that permission will be given for this if you meet the internal requirements w/in the ordinance.

EMINENT DOMAIN & REGULATORY TAKINGS

1. Eminent domain: govt has power to take property against owner’s will for public use

a. 5th Amendment: limits that private prop should not be taken w/o just compensation

b. Public use: benefit the public

c. Taking: taking title, possession

d. Regulatory taking: taking title, possession, or regulating use for public health, safety, and welfare becomes a taking of property. Must be compensated.

i. Not a taking: A taking to protect from harm is noncompensatory.

ii. If regulation causes large diminution in economic value

iii. Denies all economic beneficial uses of the land

e. Defense: the state can justify its actions as preventing a common law nuisance.

f. Remedies: LO may have a suit for injunction or damages

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download