Property Flashcards
What are the most important sticks in the bundle?
Right to exclude, right to use and right to destroy
Rules for right to exclude
Right to exclude others from one’s property is a fundamental property right even when the non-owner’s access would case no damage to the land a prevent a great inconvenience. The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property.
What limitations exist under the right to use?
The spit fence doctrine and the private nuisance doctrine
Spite fence doctrine
Limits the right to use- no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor
Private nuisance doctrine
A landowner cannot use their property in such a way that would constitute a nuisance for a neighboring landowner or, at a minimum, there will be consequences. A private nuisance is when the defendant’s conduct results in an intentional, non-trespassory, unreasonable and substantial interference with the plaintiff’s use and enjoyment of the land.
Private nuisance elements
Intentional- if the D acts for the purpose of causing the harm or knows that harm is resulting or substantially certain
Non-trespassory- light, odor, noise, vibrations and other intrusions that do not involve physical entry onto the plaintiff’s land meet this element
Unreasonable- in some states, this is conduct that causes substantial harm; in most states, the gravity of the harm must outweigh the utility of conduct
Substantial interference- there must be a real and appreciable invasion of the plaintiff’s interest, not merely a trivial impact
Use and enjoyment of land- the conduct must affected the plaintiff’s use and enjoyment of land, such as causing damage to the property or personal injury to the occupants
What limits the right to destroy?
A homeowner may not have their property destroyed through execution of a directive in a valid will, even when explicitly indicating that desire, when to destroy the home would lower property values in a historic neighborhood.
Adverse Possession definition
If certain circumstances are present a piece of property could acquire a new owner. By satisfying the elements required for acquiring ownership of property through adverse possession, a nonowner of property who has been possessing the property in a satisfaction of these elements can become the new owner of the property.
Adverse possession elements
OCEANS
- Open and notorious/visible possession- The adverse claimant’s possession of the true owner’s land must be visible and obvious such that an owner who made a reasonable inspection would become aware of the adverse claim. This does not mean the true need to look or needing to see that the adverse claimant is there. It just means that if the true owner had looked, the true owner could have become aware of the adverse claimant’s presence on the land.
- Continuous possession- The adverse claimant’s possession must be as continuous as a reasonable owner’s possession would be, considering the location and nature of the land. This means that satisfying the “continuous” element will be different for suburban or city land than it is for rural or wilderness land.
- Exclusive possession- The adverse claimant’s possession of the true owner’s land cannot be shared with the true owner or with the public in general. That said, the adverse claimant could allow members of the public to use the land if that is something a true owner might do with it. The adverse claimant cannot share possession with the true owner.
- Actual possession- The adverse claimant must physically use the land in the manner a reasonable owner would use it given its character, location, and nature. Courts look for physical manifestations of the adverse claimant’s presence.
- No permission/adverse or hostile to the true owner’s interest- States vary widely with respect to what they require for satisfaction of this element. Some statutes require “color of title” (some reasonable reason the adverse claimant believes they are the owner of the land) and others require a “claim of right” (some evidence, however flawed, that they were supposed to be the owner). Some states require neither color of title nor a claim of right. All states, though, require that the adverse claimant not have the true owner’s permission to possess the land. For our purposes, your analyses should focus only on the adverse claimant’s lack of permission.
- Statutory period- The adverse claimant must satisfy all of the elements of adverse possession for what period of time state law requires. These statutory periods range from 5–40 years, but are most commonly 10–20 years.
What constitutes uninterrupted use for adverse possession?
if the property is used in a manner that is ordinary and natural given the nature of the property (example: summer home)
Tacking
A previous owner’s time occupying a property counts towards the statutory period so as to continue adverse possession if there is privity in the ownership interest. Allows adding together of successive periods of adverse possession. If A adversely possess, then leaves, and later B enters the property there is no privity and no tacking.
Disability
Most states include accommodations for true owners who, for statutorily enumerated reason, cannot be expected to take responsibility for their properties at the time an adverse claimant’s possession begins. Typically includes: minority, insanity or mental disability, imprisonment and sometimes things like coma or military deployment. Statute of limitations does not begin to run if T/O is under a disability when the cause of action accrues, but if disability begins at some time after the trespass occurs, the statute will continue to run.
Two types of disability accommodation
Tolling- stopping of the statute of limitations for the true owner to bring an ejectment action against the adverse claimant
A statutory grace period that lengthens the duration of the statute of limitations by a specified number of years
Claim of Right/Title
the stated intention of a person to claim as their own a property on which they have been living- requires that they should communicate their intention to the true owner either directly or by acts that show the person believes themselves to be the true owner. Can claim of COR once the statute of limitations ends
Color of Title
A written but flawed document that shows an individual as owner of the piece of property, defects cannot stand up in court as proof of ownership. Advantage is that when holder of COT satisfies AP elements, the claimant gets ownership of the entire property described in flawed document, not just the portion actually occupied
Rule of Capture
Refers to personal property
Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. Mere pursuit is not enough to constitute certain control.
The Ohio Supreme Court reasoned that the rule of capture did not require absolute security against the possibility of escape. Therefore, the owners of the nets, having captured and confined the fish, had acquired such a property in them that the taking of them was larceny.
Gray’s Rule requires control after incidental contact, here, stopping the forward motion of the ball. Pierson, on the other hand, held that mere chasing was not sufficient to establish possession. The Pierson court would have required corporal possession or at least mortal wounding.
Finder at Common Law
someone who locates and takes possession of personal property they don’t already own. Usually get possessory right if the property was: lost (unintentionally or involuntarily parted with), mislaid (intentionally placed and unintentionally left behind; may imply an intent to return), abandoned (intent to relinquish property rights)
Finder as trespasser
If a finder is a trespasser on another’s land, his claim to the property is weaker than that of the landowner
Why do finders not gain ownership against the true owner of the property?
True owner rights are superior to finder rights
The true owner is a prior possessor
Finder of lost property on other people’s land
a. a finder comes across lost property in the public areas of someone else’s land. There, the finder prevails over the landowner unless the finder is a trespasser.
b. the landowner may be deemed a bailee (holder of the property on the true owner’s behalf), with the true owner being the bailor (the person for whom the bailee holds the property). Therefore, if the landowner could reasonably find the true owner, the landowner must try.
Finder of mislaid property on other people’s land
a. comes across mislaid property on someone else’s land. In this case, the landowner prevails, and the finder usually is not entitled to retain possession.
Finder of abandoned property on someone else’s land
a. A finder is entitled to claim ownership of abandoned property wherever it is found. Abandoned property has no owner and is ready to receive a new owner. For property to be abandoned, there must be evidence of the prior owner’s intent to relinquish property rights.
Who has superior rights to a lost item?
iii. The finder of a lost item has a superior right to that item over everyone except a prior possessor (which could include the true owner)
Is Mislaid property subject to finder’s rule?
v. Mislaid property is not subject to the rule that a finder of lost property has a valid claim to the property against everyone except the true owner. In order to increase the likelihood of the wallet’s return to its true owner, it was better to award possession to the shopkeeper. Therefore, in the case of mislaid property, the possessory right will go to the owner of the locus in quo
Why is context important with finding a lost chattel?
If the owner had never taken possession of the property and knew nothing about the lost object, then the finder’s rights can be superior to that of the landowner’s
Possession v Ownership
- While possession is not equivalent to ownership, possession of personal property may be evidence of ownership.
- Owners often possess their property, although sometimes they don’t.
- Possessors may be owners; but they can also hold the property in some other relationship, such as bailee or thief.
- Mere possession must yield to actual title when title can be established.
Modern Concurrent Estates
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
Tenancy in Common
a. If co-owners own a single property as tenants in common, each co-tenant has:
i. The right to possess the entire parcel
ii. An undivided interest in the whole property
iii. Devisability- a TIC can leave their interest to someone in a will, so there is no right of survivorship
iv. An interest that is transferable with no real problem
If O conveys Greenacre to A and B then each has the right to use and possess the whole parcel
O conveys Redacre to A, B and C as TIC. Then B conveys her interest to A. A and C are TIC and A has a 2/3 interest and C has a remaining 1/3 interest. Have same right to use but when property is sold the proceeds will be divided according to ownership.
Joint tenancy
a. Four unities required- TTIC
i. Time- the interests must be created at the same time
ii. Title- the interests must be acquired through the same document
iii. Interest- the co-owners must have equal shares
iv. Possession- each co-owner must have the right to possess the whole thing
b. Is transferable, can sell it but transferring will destroy the JT right of survivorship with respect to that share. The new owner of what used to be your share holds their interest in TIC with the remaining JTs.
c. If you have an interest in JT, you:
i. Have a right to possess the entire parcel
ii. Must possess equal shares in the whole
iii. Have a right of survivorship- when one co-owner dies, it goes to the other(s) divided equally among them
iv. Can’t devise it- it would have no effect
Tenancy by the Entirety
a. Basically, a JT between a married couple, automatic right of survivorship
Rule of concurrent ownership
- Even when facts outside the documents indicate intent to create a joint tenancy, the words of the document more clearly indicate that intent and the words “jointly and severally” are not sufficient.
Severance of Concurrent Ownership
- Sometimes a JT transfers their interest in a way that splits the share off of the JT and causes it to be held as a TIC as the other co-owners- this is severance. Certainly a sale causes severance, but what about a lease? Below rule applies to lease case
- A lease does not sever a joint tenancy but expires upon the death of the lessor. Inasmuch as the estate arises only upon express intent . . . we decline to find a severance in circumstances which do not clearly and unambiguously establish that either of the joint tenants desired to terminate the estate.- Tenhet v. Boswell- modern trend
- Some authorities support the view that a lease by a joint tenant to a third person effects a complete and final severance of the joint tenancy. . . . Such a view is generally based upon what is thought to be the English common law rule. Under this common law approach, a lease destroys the unities and thereby ends the joint tenancy.
Partition
- Partition is the division of property owned by cotenants according to each cotenant’s share. Partition in kind refers to the physical division of the property. If not conducive to partition in kind, a court may order a partition by sale, which is a forced judicial sale with the cotenants dividing the proceeds. Majority is to reflect a presumption towards partition in kind, only resorting to partition by sale if partition in kind is inconvenient.
Rule of Partition
- The economic value of property is relevant, but not a decisive factor in determining whether to partition in kind or by sale. Other relevant factors include long-standing family ownership, sentimental and emotional interests. - Ark Land v. Harper
Minority view of co-tenant rights and duties
- Minority view- Non-ousted co-tenancy may be entitled to an offsetting credit for the reasonable value of other cotenant’s exclusive occupancy.
Types of leased real property estates
Term of years tenancy
Periodic tenancy
Tenancy at will
Tenancy at Sufferance
Term of Years Tenancy
a. Fixed duration (a week, a day, a year, etc.) agreed to in advance
b. Renewal requires a new agreement/new leasehold
c. Lease terminates at the end of the lease term and the landlord’s reversion becomes possessory
d. Example: to T for ten years, starting June 1, 2021
e. Commonly used for commercial property b/c of long-term stability, which is vital for business development, shorter term more commonly used for residential
Periodic Tenancy
a. Tenancy for a set period automatically renewed unless one party ends it via notice
b. Renews automatically after a specified period (usually the lease period)- usually upon payment of rent
c. Example: to T from month to month, starting June 1, 2021
d. More commonly used in residential leases
Tenancy at Will
a. No defined lease term- tenancy lasts only as long as both parties desire
b. At common law, terminable by either party at any time (most statutes require some notice)
c. Example: to T for as long as we both desire
d. Rule: A lease that is not for a certain period of time creates a tenancy at will. Effel v Rosberg
Tenancy at Sufferance
a. T had rightful possession but has overstayed that right
b. LL can usually choose to evict the holdover and obtain damages, or sometimes LL can choose to re-up the lease on its original terms
c. Example: T remains in possession after his term of years tenancy ends
Three aspects of negotiating the lease that merit special attention
a. Statute of Frauds
i. Virtually all states have adopted
ii. Mandates that a lease of real property for a term of more than one year cannot be enforced unless in writing
iii. Example: a term of years tenancy for two years is subject to SOF, while a month-to-month periodic tenancy is exempt
b. Standard forms
i. Landlords often use a preprinted standard lease form without any opportunity to negotiate the terms, the form usually favors the landlord’s position
ii. In contrast, commercial leases are usually extensively bargained
c. Rent Control
i. In a few states, local ordinances may limit the amount of rent that a residential landlord can charge
ii. Typically establishes a based rent for each unit, and then allows landlords an automatic increase for all units each year
Rules for Delivering Possession
- A lessor is obligated to provide the lessee with actual possession of the leased premises at the beginning of the term.- Keydata Corp v. US. States vary on approach:
a. American rule- a lessor only promises that possession of the premises will not be withheld by the lessor or someone with superior title
b. English rule- the lessor covenants to deliver actual possession of the premises to the lessee. The lessor is more likely than the lessee to know the status of the premises and the rights of any persons occupying the premises
The challenge of substandard housing
- In re Clark- Biggest issue is living without any heat or water and obtained heat with electric or kerosene heaters and gas stoves- danger of fire and other detriments to health and safety, had to place children with relatives in the winter
Types of Eviction
Actual, partial actual and constructive
Constructive Eviction
- Wrongful conduct by the landlord that substantially interfered with the tenant’s beneficial use and enjoyment of the leased premises was deemed a constructive eviction- tenant could vacate the premises and end the lease, avoiding liability for future rent
What is wrongful conduct? Constructive eviction occurs when the T leaves the premises due to conduct by the landlord which materially interferes with the T’s beneficial use of the premises.
A landlord’s failure to act in the face of repeated requests to protect a tenant’s quiet enjoyment of the premises can constitute a constructive eviction./Constructive eviction occurs when a landlord fails to take action to control protestors who materially interfered with the tenant’s beneficial use of the premises when they entered the lobby, harassed patients, blocked the staircase and even made it into the lobby.
Elements of Constructive Eviction
a. Wrongful conduct by the LL (by act or omission)
b. Conditions that substantially interfered with the T’s use and enjoyment of the lease premises.
i. Substantial interference- some states require the conduct must render the premises unfit for the purpose for which they were leased while others utilize this standard seen in the case above. The interference need not totally prevent the T from being able to use the premises, but minor interference is insufficient. The key is whether a reasonable person would see the interference as so serious that the leased premises cannot be used in a normal manner for their intended purpose.
c. T notifying the LL and allowing a reasonable time to cure
d. T vacates the premises
Implied Warranty of Habitability
- Similar to implied warranties in consumer law
- The determination of whether a dwelling is habitable depends on the individual facts of each case, does not require perfect conditions or minor housing code violations or defects and landlord must have reasonable time to correct (Wade v. Jobe)
Test:
Uninhabitable
Actual or constructive knowledge by the LL and
Damages
Remedies for constructive eviction
a. Most jurisdictions allow T to select one:
i. Withhold rent
ii. Repair and deduct
iii. Sue for damages
iv. Terminate the lease
Damages for Constructive Eviction
a. Courts generally apply contract remedies when a breach has been shown, therefore one available remedy is damages
b. Special damages may be recovered when, as a foreseeable result of the LL’s breach, the T suffers personal injury, property damage, relocation expenses or similar injuries
c. General damages recoverable in form of rent abatement or reimbursement are difficult to calculate. Different measures for determining amount have been used:
i. Fair rental value of the premises as warranted less their fair rental value in unrepaired condition
1. Contract rent may be considered as evidence of the value of the premises warranted, or contract rent less the fair rental value in unrepaired condition
ii. Most courts have adopted percentage diminution- T’s recovery reflects the % by which the T’s use and enjoyment has been reduced by the conditions
1. Carefully review the materiality of the defects and length of existence
2. Requires trier of fact to use broad discretion and some subjective judgment
General rule of LL and Tenant interest
i. General rule- T and LL are both entitled to transfer their interests to third parties
Two ways a tenant may transfer
Assignment- When assigns their interest to someone else, the T retains nothing
Sublease- When a T sublets their interest in present possession by transferring to someone else, the T retains a piece of that interest in present possession
the words “sublet” and “subletting” are not conclusive of the construction to be placed, the context of the instrument and the facts and circumstances surrounding the execution of it are what matters
The majority approach to transfer of T’s interests:
Did the T transfer his right of possession for all of the remaining lease term (assignment) or not (sublease)?
1. If the agreement provides that transferor never receives possession in future, it is an assignment.
2. If the agreement provides that transferor automatically receives possession in future for any length of time, however short, it is a sublease.
3. If the agreement gives the transferor a contingent right of reentry, which they may or may not choose to exercise, this is an assignment in most states, but a sublease in some (including Tennessee).
Two relationships created between LL and T in early England
- Privity of contract- two parties enter an agreement with each other, they are parties to the same contract, and they each owe each other something
- Privity of estate- two parties hold an interest in the same piece of real property at the same time, b/c the covenant to pay rent runs with the land, when two parties are in this relationship, one may sustain a suit against the other regarding the payment or rent
Ways to end the tenancy
Surrender- mutually agreeing to term the lease early
Abandonment- T vacates the premises before the lease term ends and stops paying rent
Eviction- T remains on the premises but stops paying rent
Tenant Abandonment
- T vacates the premises before the lease term expires and stops paying rent
- Restatement 2nd of Property- Landlord and Tenant Section 12.1 cmt- An abandonment of the leased property by the tenant occurs when he vacates the leased property without justification and without any present intention of returning and he defaults in the payment of the rent.
a. If done with justification, no abandonment
If T abandons the lease before the term ends, what are LL’s options?
Can choose from:
sue for all rent
terminate the lease
mitigate damages and then sue for rent
What is the LL’s duty under abandonment that most states follow?
after abandonment, the LL must either: terminate the lease or mitigate damages, generally applies commercially as well
restatement continues to endorse traditional no mitigation rule
How does a LL choose from options when abandonment occurs?
a. T’s solvency
b. Whether fair rental value of the premises is stable, rising or failing, and
c. Avoiding wear and tear on the premises
Retaliatory Eviction
an eviction of a tenant by a landlord that is motivated, in whole or in part, by the tenant’s exercise of a legal right,” such as complaining in good faith to the health department, using a tenant remedy such as rent withholding, or organizing tenants in response to rental conditions.
What tenant activities are protected and cannot be evicted for?
- Making or expressing an intent to make a complaint that is “in good faith and related to the tenancy.”
- Organizing or becoming a member of a tenant’s union.
- Testifying against the landlord in a judicial, administrative, or legislative proceeding.
- Successfully defending an action for possession brought by the landlord within the previous six months.
- Performing or expressing an intent to perform “any other act for the purpose of asserting, protecting or invoking the protection of any right secured to tenants under any federal, state or local law.”
