Midterm Exam

Question 1

(ferae naturae)

Answer 1

in their natural state are unowned. They become private property when they are possessed.

Question 2

Rule of Capture

Answer 2

Unequivocal intent and un-abandoned pursuit to appropriate for own use. . you must have the intent to possess and control over the wild animal (also works for water and oil) (1) works for all natural resources (2) most jurisdictions have eliminated because it promotes a rush on the resource

Question 3

Rule of Reason

Answer 3

Hot pursuit with a reasonable prospect of capture (1) Policy- reward labor of hunter, hold to customs

Question 4

Rule of Capture Majority Reasoning

Answer 4

focuses on the fact that there needs to be less disputes, therefore less wasted resources. They believe their rule is clear b/c it is objectively verifiable.

Question 5

Ratione Soli

Answer 5

landowner has constructive possession of animals on his land, (not exclusive possession) while on your property you have the exclusive right to capture the animal. If someone kills an animal on the landowners property, the landowner gets the animal

Question 6

Relativity of Title

Answer 6

Who has the better title?) Property is not about the relationship between people and things but about the relationship between people regarding things.

Question 7

Creation of a Fixture

Answer 7

Annexation Adaptation Intent to make Perminent

Question 8

Trade Fixtures

Answer 8

At the end of a commercial lease, the tenant may remove business or trade items he installed on the premises. This rule has been expanded generally in this country to include items installed for agricultural and even ornamental use. Trade Fixtures: “an exception to fixture rule” an article of personal property that is brought onto leased property by tenant, used by tenant, necessary to conduct the method of business → doesn’t remain with realty when possession returns to owner→ because there is no intent for it to become permanently attached. → things might be bolted but the intent isn’t there Policy because the tenant needs these things, but if tenant couldn’t take it with them, would be economic loss

Question 8

Bundle of Sticks Theory

Answer 8

We have the right to… (1)Possess (2)Use (3)Exclude(include), and (4)Transfer c)Just b/c one or more of these rights are limited does not mean that you loose possession all together.

Question 9

Property (Old Common Law)

Answer 9

the land was the thing and the structure was incidental (1)Under strict property law (a)lease covenants are independent – the promise from landlord to take care of prop is independent from the promise of the tenant to pay rent (b)Landlord has no duty beyond delivering possession unless specifically agreed to. He has no duty to repair or liability for dangerous conditions, unless agreed to. (c)Court would be unlikely to hold landlord responsible for anything but would hold the tenant responsible

Question 10

Lease Defined

Answer 10

Both a conveyance (transfer) of property and a contract. The landlord transfers his right of possession to the property, but he retains ownership interest (future reversion). Contractual provisions both limit the tenant’s right of use and create obligations for the owner.

Question 11

Oral modification or rescission (Statute of Frauds

Answer 11

Trend toward recognizing oral rescission, but not oral modification of a written lease. Oral rescission allowed if the length of term remaining on the lease to be rescinded is less than the term required by the statute of frauds. Gee v. Neiberg, p. 28 (allowing oral recession of final month of lease). In Gee, court also pointed to consideration for the agreement (landlord wanted the family to move out; he promised to release them in exchange for their finding another place).

Question 12

Tenancy for a Fixed Term (Estate for Years

Answer 12

CL Duration- Non Modern Duration- some states maximum length is 99 years, or convert leases into absolute ownership interests (1)Ends at the expiration of the stated term (2)No notice of termination (because the lease states when it ends) (3)At common law, no limit on lease term (4)A tenant who stays past the term is a holdover tenant and is a trespasser; if the tenant pays additional rent and landlord accepts this converts lease into a periodic tenancy Automatically terminates at end of term. If one party dies, rights go to hiers. example lease is silent, so no notice needed example lease is silent, so no notice needed Exceptions: death (common law-no was a conveyance so death didn’t alter, the eres would continue→ modern some courts have held residential, if tenant dies terminates

Question 13

Statute of Frauds

Answer 13

Creation – Statute of Frauds a.The Statute of Frauds states that most leases must be in writing if more than one year. b. Conveyance – can be used for some purpose other than giving full rights of ownership If lease violates the Statute of Frauds, tenant is treated as “at will” and can be evicted without notice. The moment the tenant and landlord begin to exchange money, the court views this as a month to month lease and tenant cannot be evicted without notice. CL- Oral leases exceeding three years in duration had the effect of leases or estates at will only Modern- maximum length of oral leases is one year

Question 14

General Rules for Modifying of Statute of Frauds

Answer 14

General Rule – Where the original contract is required by the statute of frauds to be in writing, it may not be modified or varied by a subsequent oral agreement. (3)Majority General Rule – An oral agreement for the surrender of a written lease required by the statute of frauds to be in writing is within the statute, unless the unexpired term of the lease is less than that required by the statute to be in writing.

Question 15

Periodic Tenancy (m-to-month most common)

Answer 15

(1) Successive identical periods of time (week to week, month to month, year to year)Operation of law (where a person is on the land and pays the owner week to week, etc and the owner accepts the money)- inferred from the parties conduct - how rent is calculated and how rent is paid - dictates the length of time needed for notice of eviction- the day of termination must be on the last day of some period. If notice is given in the middle of a month, there is 1) no effective notice or 2) termination not effective until the end of the next mo. (c)Automatically renewed, unless notice to terminate. 1.At CL you had to give 6 months notice for a one year to year tenancy; for all periods less than a year were designated by the time period- one week, or one month; notice to terminate has to be at the end of the next fixed period Notice, to terminate a periodic tenancy may be oral unless required to be written or by statute Note 3: ask when does period start? 1st of the month? Majority rule: if lease is silent→ would be effective for following period if period started on the first, and notice put in 15th

Question 16

Tenancy at Will

Answer 16

(1)At common law, terminated by either party without notice. Through the actions of the parties become a periodic tenancy (a)Example: invalid lease (under the statute of frauds or something) (b)Example: rent-free relatives that won’t leave 1.the parties conduct here can create a periodic tenancy (2)if rent is paid periodically, the arrangement is treated as periodic tenancy and appropriate notice is req’d (3)T at will may e created by express agreement, often arise b/c not a fixed term nor a periodic tenancy Default rule to terminate 1. No advance notice is required to terminate a tenancy at will (just have to let them know, today, tomorrow, now) 2. Common law view tenancy at will if expressly stated could be terminated by one party, it was implied could be done by both partys (but many states say if lease says only tenant may terminate, court generally hold them to it)

Question 17

Tenancy at Sufferance (Holdover Tenant) & Landlord Options

Answer 17

(1) Holdover tenant (someone who stays beyond the end of their lease) (2)Options for landlord (a)Establish as a new tenant (on the same terms as the prior lease) (b)Trespasser (3) C/L – holdover if T stays 1 sec past old term ad L may elect to bind T to new term (4) Modern trend – no holdover so long as T’s continued possession is a product of circum beyond T’s control If lease is silent Common Law: treat tenant as trespasser and evict him or the landlord could hold the tenant to a new term, on same terms and conditions

Question 18

Fifth Amendment

Answer 18

Limits government taking of property. “Nor shall private property be taken for public use, without just compensation.”

Question 19

Property defined (not in Constitution):

Answer 19

Property is a “bundle of sticks,” a collection of individual rights which, in certain combinations, constitute property. An owner of property can: sell it, use it, possess it, exclude others from it, etc. Property is the relationship to the object, not the object itself.

Question 20

Dynamic Concept

Answer 20

Property can be extended to things like body parts Policy→ selling hand would it lead to undesirable ends Showing celebrity cases where face is shown or voice → use/ exclude, goes again to bundle of sticks

Question 21

Actual annexation

Answer 21

was it in fact attached

Question 22

Constructive Annexation

Answer 22

not actually attached but law will treat it as it was though

Question 23

Analysis for Annexation

Answer 23

On exam argue for the annexation then continue the analysis with adaptation and intention Intention factors: •Nature of articles •Manner of annexation to the land •The injury to the land if any by removal •The completeness with which the chattel is integrated with the use to the land such as a liscence •The relatitionship which the annexer had with the land •Relation with the annexer has with the chattel such as owner

Question 24

Exception to the Statute of Frauds

Answer 24

Exception: unless the unexpired term of the lease is less than that required by the statute to be in writing Unexpired term of the lease is 1 month since unexpired term doesn’t need to be in writing because the balance is less than one year.

Question 25

*(English Rule)- majority

Answer 25

*(English Rule)- majority (Actual possession) 1.L must put T in actual, physical possession of the leased property (in addition to legal possession) – L bears the cost of evicting holdover 2.Policy – 1) puts burden on L b/c he would be in better position of knowing if T1 was on premise, 2) before the new lease, T2 has no right to prop but L does, 3) meets the parties’ expectations (intentions at the time K was signed) 3.L has an implied in law obligation to deliver actual possession to T on the 1st day of the lease term Rationale: •LL is more sophisticated and has better knowledge of eviction procedures. •Tenant expectations (expects to be able to take possession). •Moment of initial transfer is different than later in the lease (where tenant has obligations to exclude). •LL has knowledge of holdover tenant’s intentions (or greater ability to receive it).

Question 26

*(American Rule) – minority

Answer 26

*(American Rule) – minority (Legal possession) [there must be an express covenant for delivery to hold L liable for failure to deliver actual possession of land to T] – T bears the cost of evicting holdover 1.L must put T in legal possession (i.e. signing K) a.If L gives 2 different people the legal rights to possess, or if L views the holdover T as a new T not trespasser, or if L signs lease but then sells premises the day after then he has violated the American Rule. 2.Policy - L and T2 are equally able to pursue a reedy and able to protect themselves and when K is silent, no duty should be imposed on L (can come back w/ T’s rzbl expectations that they get the apt) 3. Reasoning- if landlords knew they had to go further and would be in break of the lease if they didn’t, then no landlord would lease the premises before the end of the current tenants end of the lease “would be a big problem” Rationale: •Contract provisions allow parties to add such an obligation. LL transferred the interest (exactly what lease requires). •Implied covenant makes it difficult for LL to lease in advance of prior tenant’s complete vacation of the premises (LL cannot control third party’s action). •Symmetry with later in lease term (where LL has no duty to prevent trespassers). •Summary eviction remedy available.

Question 27

Breach and Remedies of the English Rule

Answer 27

a breach gives T a choice in either E or A, T has two options: 1.Withhold rent; stay there, keep lease and seek damages 2.Repudiate the lease and seek damages K remedy 1.Abate rent for a certain amt of time 2. Terminate the lease 3.For an automatic termination

Question 28

Quiet enjoyment

Answer 28

All leases contain an implied covenant of quiet enjoyment. Covenant of quiet enjoyment is breached by entry on or expulsion from land (by landlord or someone acting under his authority) or from actual disturbance of possession by virtue of paramount title or right (e.g., a third party with true title evicts tenant).

Question 29

Actual eviction:

Answer 29

If tenant is actually evicted by the landlord or someone else, his lease obligations end. •Tenant’s rights: Where eviction is complete, bring action to regain possession or to terminate the lease and obtain damages.

Question 29

partial actual eviction

Answer 29

Δ, landlord, wanted to renovate the building and the renovation will remove part of the Πs, tenant, lease space (a)The court states this is a partial actual eviction. Doesn’t matter what size the reduction is. Done by 1) legal action, or 2) destruction of premises Rule: There is no de minimis exception to a partial actual eviction. If a portion of premises is taken from T, it suspends all rent due. The consequence of a partial actual eviction is suspension of ALL rent. 1.Minority uses a partial abatement of rent or apportionment usually by sq footage 2.Majority is better because it would allow the L to carve out part of the lease space if they could make more money. → can’t terminate lease 3. If total actual eviction occurs “100% of space” can terminate the lease

Question 30

Actual and Partial Eviction Notes

Answer 30

1.If it is a full eviction, the tenant does not need to pay rent while ousted. 2. If T notices the dimunition but doesn’t stop L, may be seen as waived his right 3. If L chgd locks b/c used prop for prostitution, can be actual b/c T does not have access to physical space but also can be constructive b/c untentable for other Ts and kids

Question 31

Constructive eviction:

Answer 31

The landlord may also breach the covenant of quiet enjoyment by breaching some legal duty to the tenant. At common law, if landlord failed to fulfill a promise in K, there was only an action for breach of K (damages). However, strong trend toward applying K principle that covenants are mutually dependnent (e.g., tenant’s duty to pay rent depends on LL’s duties, other than mere conveyance of legal possession, in the lease).

Question 32

Constructive eviction Analyasis:

Answer 32

•A duty (a covenant in the lease); •LL’s breach of the duty; •notice from the tenant to LL that he has breached the duty (followed by no response); •results of “grave and permanent” character; •tenant’s vacation of the premises within a reasonable time (question of fact for jury). Remedies 1.Obligation to pay rent is suspended 2.Tenant may recover damages Constructive eviction is usually claimed as an affirmative defense against a suit for not paying rent and then as a counter-claim against the landlord for damages. When arguing, T must give evidence to show the time it took to vacate was rzbl→ must move out in a reasonable amount of time… → functional equivalent of an actual eviction.

Question 33

Landlords Obligation to Restrain other Tenants

Answer 33

Approach for exam is that there are two views (1) no duty to control other tenants, or (2) a limited duty only if there is a contractual duty to control other tenants No duty of 3rd party’s, unless landlord has undertaken some duty, or required by law •Apartment → in the lease keep quite after 10 – court will say you have rules, if your being inconsistent, they could be constructively evictedbecause landlord has breached the covenant of quite enjoyment.

Question 34

Traditional Approach Landlord’s Duty – Caveat Emptor

Answer 34

(L has no duty and T owes rent): (1)The traditional approach was that L had no obligations regarding the condition of the premises with 4 exceptions. (a)Exceptions include: 1.short-term leases for furnished dwellings [L is more likely to discover problems]; 2.buildings under construction; 3.L’s fraud or concealment; and 4.common areas [L has control of areas] - form documents should be strictly construed against the person who wrote them b/c probably put in terms most favorable to them or may have used ambiguous terms construed against L assuming L is the drafter o Easement? (b)No liability: b/c any structure on land was 2d-ary; and that neither party was more experienced to do so •Common law: Unless expressed to the contrary the tenant took the lease premise as is. oRational for the rule: landlord tenant laws developed under agrarian society, so leases were about the land. → building treated as incidental o Common law: lease is a conveyance→ no right of landlord to even enter the land

Question 35

Permissive Waste

Answer 35

Permissive waste: Damage that occurs through general deterioration, wear and tear, but not deliberate action by tenant. Tenant has a duty to make ordinary, tenantable repairs to prevent permissive waste. •Rationale: Tenant is the least-cost avoider (knows the problem), and tenant’s use contributes to problem (fairness). •Limits: No duty to make substantial repairs (e.g., a tarp on the roof is enough if it has a hole). Statutory limit: Statutes generally excuse tenant from obligation to pay rent when premises suddenly destroyed (e.g., fire, flood, tornado), but not from graduate deterioration. Methods to abate rent in proportion to whole: % of sq ft and mkt equivalent No duty on L at C/L. the duty is on the tenant to make ordinary repairs to prevent waste or decay. 1. Tenant is responsible for repairs that can be done with slight repair or loss. I.e., ordinary repairs- in between catastrophic and wear and tear (broken windows, roof shingles) [not substantial, lasting, or general repairs or ordinary wear and tears] 2.Tenant has no duty with regard to waste if the property is destroyed by earthquake. (sudden catastrophic) [under c/l, still obligated to pay rent] 3.How do you decide what the destroyed part of the property is worth so it may be deducted from rent? Look at other equivalent property to find worth (bedroom is ruined in a 3 bedroom house so look at the rent on 2 bedroom house).

Question 36

Voluntary Waste:

Answer 36

Material changes that the tenant makes to the premises (even if they increase the property value). •Rationale: Landlord entitled to receive premises in the same condition that he conveyed them. •Test: Whether changes are material depends on the length of the the lease, nature of the property, cost of restoring premises, etc. Example: No waste where tenant added a partition to the premises when it had a ten-year lease and change could be reversed at relatively low cost. Remember to look at fixture and annexation

Question 37

Casualty Loss

Answer 37

=sudden destruction (earthquake, fire, wind storm) oStatute that changes the law, will be narrowly construed unless it says it will be liberally construed. oEven if not statute, and no expressed (silent→ Mordern Rule) → when premise is destroyed, majority rule the T may terminate the lease → consideration for lease has failed, or frustration of purpose. (lost benefit of the bargain) (this is not a conveyance – they are a contract theorys)

Question 38

Meliorating waste

Answer 38

– chgs that increase the value of prop (minority). Cts don’t award damages when it’s this type of waste

Question 39

Tenants are allowed to make changes if

Answer 39

they are: a.temporary – must be easy to remove b.proper to the space – not material or substantial

Question 40

Tenant is not allowed to make changes that

Answer 40

are material or substantial. The court may look at the lease terms to decide whether this is waste or not. The longer the lease the larger the changes will have to be to accommodate.

Question 41

Tenant Material Changes Elements of material-

Answer 41

not a bright line rule o Basic structure still there (walls, roof, foundation) o Walls were temporary, inexpensive to remove o Length of lease o Cost of restoration

Question 42

Implied warranty of habitability (residential):

Answer 42

Landlord must provide “bare living requirements,” ensure that the premises are fit for human occupation. Violation of housing or health code serve as strong evidence. Caveat emptor rejected. •Some cts hold if T knew of defect before moving in he will have waived IWH. •Standards for Determining IWH – existence of a building code violation is at least evidence of uninhabitability. Most courts also require proof of threat to health and safety. (1)under IWH: hot H2O, heat, cracks (affect health and safety) (2)not IWH: blinds, minor H2O leaks, paint (does not affect h&s) (3) Safe Harbor – substantially comply w/ bldg and housing codes (still need to relate to health and safety). Code not allowed to create c.o.a. Must use breach of code through IWH and must be substantial affect on health and safety

Question 43

Caveat Emptor IWH Exceptions

Answer 43

Under the principle of caveat emptor, the buyer could not recover damages from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud.

Question 44

Implied warranty of suitability (commercial):

Answer 44

Caveat emptor prevails with exception of Texas, which imposes implied warranty of suitability. Landlord in a commercial lease must provide premises that are suitable for their intended commercial purpose: No latent defects and essential facilities will remain in a suitable condition.

Question 45

IWS Factors to Determine Breach

Answer 45

1.Nature of defect 2.Its effect on tenants use of premise 3.Length of time defect persisted 4.Age of structure 5.Amount of rent 6.Are which premise is located 7.Whther the tenant waived the defects 8.When the defect resulted from unusual or abnormal use by the tenant • Example: Breach of implied warranty of suitability where commercial LL leased to tenant for medical office and failed to provide air conditioning, heat and other services that he had expressly agreed to provide. (note that court could have found constructive eviction because of express covenants).

Question 46

To Repair:

Answer 46

means to mend and old thing, not a new thing

Question 47

To Restore:

Answer 47

to sound state something which have become dilapidated, not to create something that has no existence. Courts look for the “magic words” which is the intent of the parties at the time of the lease execution and the plaine meaning of the language.

Question 48

Validity of Exculpatory Clauses:

Answer 48

clause which deprives the T of the right to recover damages from harm caused by L’s negligence by releasing the L for future acts of negligence Leases commonly contain clauses that absolve a landlord from liability for personal injury and property damage. Such provisions are generally void if they violate public policy. •Factors to consider: whether party performs service of great importance to public; whether party holds himself out as willing to perform the service; bargaining strength of parties; whether contract is standard “adhesion” or freely bargained for; person or property is under states control. •Commercial tenants: Some courts enforce because commercial tenants have access to legal services and because the public policy concern (housing, shelter) is reduced. •Uniform Residential Landlord and Tenant Act (URLTA): Prohibits exculpatory clauses in residential leases.

Question 49

Assignment:

Answer 49

Absent a prohibition to the contrary, lessee may freely assign. An assignment of a lease occurs where a lessee (original tenant) transfers the entire unexpired remainder of the term of his lease without reserving a reversionary interest to himself. Privity of estate is immediately created between his transferee and the original lessor (landlord) because the assignee now owns the original tenant’s entire estate. Because privity of estate established, the landlord and the assignee are obligated to fulfill the covenants to each other that run with the land. •Exception: Original tenant remains liable for the rent as a surety. Landlord can collect from either original tenant or assignee. •Further assignment: If assignee further assigns, he is no longer liable for rent obligation.

Question 50

Sublease:

Answer 50

A sublease occurs where a lessee (original tenant) transfers part of his estate but retains a reversionary interest. Essentially, the lessee becomes the landlord of the sublessee. Sublease creates neither privity of contract nor privity of estate. Sublessee is not bound (nor benefited) by covenants in the lease. Original tenant retains the obligation to pay rent to the original lessor.

Question 51

Implied Covenants of Nonassignment:

Answer 51

Express covenants of nonassignability are strictly construed. Implied covenants are generally not recognized. •Exception: Implied covenant may be recognized if a failure to recognize the restriction would deprive a party of the benefit of his bargain (e.g. where LL depends on the income from a particularly unique business in this location, or the tenant pays only as a percentage of its sales). •Example: No implied covenant of nonassignment where grocery store assigned to another grocery store and percentage clause was only a non-guaranteed addition to rental payments. Rowe v. Great Atlantic & Pacific Tea Co., •Implied warranty of continuous operations: Some courts find an implied duty where there is a significant percentage rent clause based on tenant’s sales.

Question 52

Landlord’s Right to Withhold Consent of assignment:

Answer 52

Common law-majority rule, . Common law: A “silent consent” clause that prohibited a tenant from transferring without consent allows a landlord to withhold consent for any reason, even if unreasonable and arbitrary. Modern Trend – Julian Rule: Landlord can only withhold consent on reasonable grounds. (e.g. LL concerned about the transferee’s financial irresponsibility, instability, unsuitability of land of its purposes, etc.). •Rationale: Default rule is that lessee has right to freely alienate. In addition, there is an applied covenant of good faith and fair dealings. Thus, public policy requires that the landlord act reasonably, rather than arbitrarily or capriciously. •Example: A landlord’s demand for higher rent to allow assignment was not reasonable, despite a lease provision requiring landlord’s consent. Julian v. Christopher, p. 95. Limit of Consent: Consent to one transfer does not imply consent to future, additional transfers.

Question 53

Percentage Clause in a lease

Answer 53

is some sign of an implied assignment agreement (to limit) o Significance will very with other terms of lease o The surrounding circumstances oNature of the business conducted upon the premises o The identities and expectations of the partys  Was lease entered into in sole reliance upon •Skill •Expertise •reputation

Question 54

Dumpor’s Case:

Answer 54

only applies to assignments, not subleases → if lease contains clause which prohibits t , if landlord has given consent in one situation, T does not have to seek permission for a different assignment. → landlords consent for one sublease, does not prevent him from withholding consent on a second sublease Lease says must get permission for an assignment, silent on sublease, tenant subleases for term minus 1 day → tenant could sublet even without L permission because it is silent.

Question 55

Summary Eviction:

Answer 55

Every state as an efficient, economical summary eviction procedure that a landlord can use to oust a holdover tenant or a tenant that refuses to pay rent. Tenant cannot bring counterclaims (unless it involves warrant of habitability). Supreme Court upheld on due process challenges because there is on Constitutional right to housing, but there is protection against takings. Courts split on whether summary eviction procedures are mandatory.

Question 56

Summary Eviction: Mandatory Process

Answer 56

Most courts wary of encouraging landlords to utilize self-help measures (e.g., padlocking the premises, taking possession of tenant’s chattels) out of concern such measures might create violence. Bass v. Boetel & Co., p. 114 (holding summary eviction procedures mandatory despite clauses in the lease that allowed LL to take possession of premises and of tenant’s chattels).

Question 57

Summary Eviction: Self-Help

Answer 57

Permitted: Other courts allow self-help measures, so long as they are not violent out of a concern that summary eviction process takes too long. At common law the L cannot engage in self-help- unless 1. Provision permitting, retake and throw tenant out 2. Peaceably, without damage or violence, or threat of violence. Majority says this is not allowed, Dissent says it is → probably majority- even if lease contains provision allowing L to do self-help, and even if it could be done peaceably – the L cannot engage in self help.

Question 58

Retaliatory Eviction:

Answer 58

While a landlord may evict for any legal reason or for no reason at all. However, LL is not free to evict (or decrease services, refuse rent, etc.) in retaliation for his tenant’s reporting housing code violations to authorities. If the tenant defends his eviction by pointing to a retaliatory motive based on his reporting a code violation, the burden shifts to LL to show that eviction was not retaliatory and that he had a legal motive. •Rationale: Public policy concerns. Based on poor condition of housing in the area, inequality of bargaining power, importance of minimum standards in housing conditions. If tenants are intimidated and fail to report, conditions will not improve. •No Notice Exception: This rule true even if LL can normally terminate with proper notice. Edwards v. Habib, p. 122 (where LL had provided 30 days notice to month-to-month tenant, because motive still retaliatory, LL liable for retaliatory eviction). •Tenant’s Remedies: Damages?

Question 59

Illegal Activity by Tenant:

Answer 59

Where lease gives landlord right to evict tenant for engaging in illegal activity on the premises, he may bring such an action against all co-tenants, even if only one engages in the activity. •Rationale: Public policy interest in ensuring that premises free from crime. •Example: Landlord allowed to evict mother and son where son possessed drugs on the premises and both co-tenants. Phillips Neighborhood Housing Trust v. Brown, p. 124. •Statutory provision: Even where no lease provision, many states give landlord right to evict for tenant’s illegal activity, and right existed at common law.

Question 60

Three Legal factors give rise to create liability running from the assignee of a leasehold to the lessor

Answer 60

1.privity of estate 2.covenants in the lease running with the land 3.actual assumption of the covanents of the lease by th assignee benfefits and burdens run with the land. Agreement in the lease: pay rent : whether it runs with the land if it is an assignee, but it does not with a sublease Reasoning: vertical privity of estate the transferee takes the entire balance of the lease term Only 1 privity of estate at a time, Can have multiple privity’s of contract

Question 61

Abandonment and Surrender

Answer 61

What are L options, when T abandons & ceases to pay rent 1.CL Could do nothing, and sue tenant for rent when and as its due a.Next case that landlord has duty to mitigate damages 2.CL Accept the offer to surrender – terminates the lease, and landlord has possession again 3.CL Re-enter and relet for T’s benefit without terminating lease- (T will owe the difference) 4.CL cannot do 4 unless →Accelerated rent (anticipatory breach) under property law (conveyances) no (contract law- yes) a.CL will allow L to sue for anticipatory breach if party’s expressly agree in lease (permitting landlord to accelerate if the T abandons and default in rent- must be expressed in lease) If tenant abandons occupancy before expiration of lease, lease remains liable for rent for the remainder of term Abandonment- ofer by tenant to surrender – “T I want to terminate” L doesn’t not have to accept. -If tenant abandones and stops paying rent, this is an offer, o If landlord doesn’t except

Question 62

Survival clause:

Answer 62

• If lease includes a provision that allows LL to retake and relet without terminating the lease, any reletting must benefit the tenant. If LL re-takes for his own use or relets rent-free, the lease is terminated. Mesilla Valley Mall Co. v. Crown Industries, p. 128 (lease terminated when LL re-took property and allowed museum to use premises rent-free while it sought a paying tenant). Rationale: Once LL retakes and relets, he interferes with tenants right to exclusive possession.

Question 63

Acceleration Rent clause:

Answer 63

• Allows LL to recover rent for entire term if tenant breaches

Question 64

4 Step Plan: To Estate and Future Interests

Answer 64

1.Draw lines to separate the various interests. 2.Identify and underline the remainder 3.If the future interest holder is ascertained and there is no condition precedent inside the underlined words, the remainder is vested, if not, it is contingent. 4.If remainder is vested, look in the next estate for a divesting condition. If you find one, could it divest the remainder before it becomes possessory? If so, the vested remainder is subject to complete divestment.

Question 65

Rule Against Perpetuities Applies to 3 interests:

Answer 65

(1)Contingent Remainders (2)Vested Remainders subject to open, and (3)Executory Interests

Question 66

Reversion

Answer 66

The interest retained by the transferor who transfers a lesser estate than he owns. The law implies a reversion whenever one transfers a lesser estate than that owned. •Example: “A conveys to B for life.” •Rights: Fully alienable, descendible and devisable. Always vested; therefore, not subject to the rule against perpetuities.

Question 67

Remainder

Answer 67

Remainder is a future interest created in a transferee capable of becoming possessory upon the natural termination of a prior estate created by the same instrument. Remainders can only follow a fee tail, life estate or leasehold; they can never follow any of the fee simple estates. The remainder must be created at the same time as the supporting estate and must become possessory immediately when the supporting estate terminates. Two types of remainders: vested and contingent. Steps to identifying a remainder: • Does the transferee have some interested other than the right to present possession? o If yes, then either a remainder or an executory interest. • Does the interest become possessory upon the natural termination of the prior estated created by the same instrument? o If yes, then remainder. If no, probably an executory interest.

Question 68

Vested Remainder:

Answer 68

A remainder is vested if at every moment during its continuance it becomes present possessory whenever and however the freehold terminates. An estate transferred to a born and ascertained person and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate. Freely alienable, descendible and divisible. Vested remainders come in three forms: Totally Vested, VRD, VRO

Question 69

Contingent Remainder:

Answer 69

A contingent remainder has an element of uncertainty; it is not always ready to become possessory whenever the prior estate terminates. A remainder is contingent when it is either (1) subject to a condition precedent or (2) created in an unborn or unascertained person. Such a remainder is not ready to become possessory upon the termination of the preceding estate. Alienable, divisible and descendible, but subject to the rule against perpetuities Created in an unborn or unascertained person: •O conveys “to A for life, remainder to the hiers of A.” A’s heirs cannot be ascertained until A’s death. Therefore it is contingent (A may not have hiers). •O conveys “to A for life, remainder to the first child of A.” (A has no children.) A has a life estate. Contingent remainder to first child of A. O has reversion. Subject to a condition precedent: •O conveys “to A for life, then if B marries before A dies, to B.” B’s remainder is subject to a condition precedent. Therefore, it is contingent. •O conveys “to B for life and then to C and his heirs if C marries D.” B has a life estate. C has a contingent remainder. O has a reversion. •O conveys “to B for life, then to C and his hiers if C marries D, otherwise to E and his hiers.” B has a life estate. C has a contingent remainder. E has a contingent remainder.

Question 70

CR v. VR

Answer 70

o Distinguishing from Contingent Remainder: Language is key. If the condition is intertwined with the language creating the estate, it is a condition precedent, and the interest is a contingent remainder (uses “to A and then, if x to B). However, if the condition is separated from the language creating the estate, it is a condition subsequent, and the interest is vested remainder subject to complete divestment (usually uses “to A, then to B, but if x, then y.”

Question 71

Vested Remainder Subject to Complete Divestment:

Answer 71

A vested remainder subject to a condition subsequent. The identity of the interest holder is certain and the remainder is certain to become a possessory estate, but some specified event may divest the transferee. o Example: O conveyed “to A for life, then to B, but if B fails to marry before A dies, then to C.” The remainder to B is vested, but there is condition that B must marry before the death of the life tenant or be divested of B’s interest. B has a vested remainder subject to complete divestment. (C has executory interest. See below).

Question 72

Vested Remainder Subject to Partial Divestment:

Answer 72

A vested remainder in one or more ascertainable members of a class, which may be enlarged by adding currently unknown persons. Identity of the interest holder known, the remainder is certain to become possessory, but the interest holder’s share in the estate is uncertain. o Example: O conveyed “to A for life, remainder to children of B (a living person).” At the time of conveyance, B has one child, C-1. C-1 has a vested remainder subject to partial divestment in favor of other children who may be born of B before the remainder becomes possessory (at A’s death).

Question 73

Totally Vested:

Answer 73

A remainder identified by its certainty. A totally vested remainder is conveyed to an ascertained living person; there is no condition (except the natural termination of the prior estate); and there is no provision for partial or total divestment after taking. o Example: O conveyed “to A for life, remainder to B.” B has a totally vested remainder in fee simple absolute.

Question 74

Executory Interests

Answer 74

An executory interest is a future interest created in a transferee that must cut short or divest another estate or interest in order to become possessory. Any future interest created in a transferee other than a remainder is an executory interest. •General rule: If one instrument creates a vested remainder in fee simple in one transferee and a future interest that cuts short that fee simple in a second transferee, the second future interest is an executory interest. •Fee Simple also Subject to Executory Interest: If a fee simple estate terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest. The original transferee has a defeasible fee subject to an executory interest. •Not subject to rules regarding contingent remainder, but subject to the rule against perpetuities. •In modern law, executory interests are devisable and decendible. They are alienable inter vivos in most states. •Executory interests are generally in fee simple absolute. Shifting Executory Interest: A shifting executory interest divests another transferee. •Example: O conveys “to B and his hiers, but if C returns from France, to C and her hiers.” B has fee simple subject to a condition subsequent. C has a shifting executory interest in fee simple absolute. Rationale: C’s executory interest would cut short the fee simple. Springing Executory Interest: A springing executory interest divests the transferor. •Example: O conveys “to C and her hiers, if C returns from France.” C has an executory interest. O has reversion. C’s executory interest must cut short O’s estate.

Question 75

Types of Waste

Answer 75

Meliorating waste -The longer the lease the larger the changes will have to be to accommodate. Permissive or involuntary Waste Voluntary or commissive waste

Question 76

Wrongful eviction claim Stems from

Answer 76

–L lacks authority under the lease – L used unpeacable means – Jurisdiction prohibits self help – L Breached the IWH – Retaliatory Eviction – Prohibited Housing Discrimination Fair Housing.