US Property Law - Fall

Question 1

Where does property law come from?

Answer 1

U.S. constitution, Common Law, Federal and state statutes and local administrative regulations.

Question 2

How should we think about the property?

Answer 2

Possession, Control, Enjoyment, Exclusion, and Disposition.

Question 3

Property as relationships between….

Answer 3

Owners and property, others and the property, and owners and others.

Question 4

Realty, real estate and real property all mean the same thing. True or false.

Answer 4

True, these all refer to actual land and the improvements attached to the land.

Question 5

What is personalty?

Answer 5

This is all property that is not real property. (Automobiles, stocks, etc.)

Question 6

Johnson v. M’Intosh (1823)

Answer 6

Basically, the start of the doctrine of discovery rendered Indian people that they were incapable of owning land or that they didn’t own the land. Indians only have the right to occupancy of the land.

Question 7

The nemo dat principle

Answer 7

You can not give what you don’t have.

What if the U.S. government grants a piece of land to Bob on May 1 and then grants that same piece of land to Sally on June 1. Thereafter, on July 1, at exactly the same time, Bob sells that land to Carl, and Sally sells that land to Nancy. Who owns the property?

Carl gets the land because US gov gave the land first to Bob, so Bob was the true owner of the property. After Bob owned the land, he gave it to Carl, so Carl is now the true owner of the property. On the other hand, Sally had no right to the property at the very beginning and thus she had no right to give it to others.

Question 8

Pierson v. Post

Answer 8

Mere pursuit is not enough to show possession.

Actual bodily seizure of the animal shows possession, but “actual bodily seizure is not indispensible to acquire a right to wild beasts” if the hunter mortally wounds the animal and does not abandon pursuit of the wounded animal because that mortal wounding and pursuit shows “an unequivocal intent of appropriating the animal to his individual use.”

Question 9

Doctrine of Assession

Answer 9

Comes into play when one person adds to the property of another through either labor or labor and new materials.

Three factors to consider:
1. The mental state of the improver
- Good faith is necessary for accession.
2. The degree of transformation of property
- Major transformation weighs in favor of compensating improver.
- Little transformation weighs in favor of giving full property to original owner.
3. The relative value contributed by improver
- If the final product is of much greater value than the raw materials, weighs in favor of compensating improver.

Question 10

Alex innocently uses a bushel of Bob’s grapes to make a batch of wine. The batch of wine sells for $2500, but the bushel of grapes is only worth $50. What result?

Answer 10

Alex would be awarded the final product – the wine – but Bob would be entitled to damages equal to the value of the grapes – $50.

Question 11

Doctrine of Increase

Answer 11

Rule: The offspring (or increase) of domestic/tame animals belongs to the owner of the mother (aka “the dam”)

Note: This also applies to any increase to the increase – so any offspring of the offspring of the mother.

The rule promotes certainty because it is easier to ID the mother, and it rewards investments in breeding, and the rule is easy to administer.

Question 12

A cow from Alex’s herd roams onto Bob’s farm, mates with Bob’s bull, and ends up returning so often to Bob’s farm (to see the bull) that the cow ends up giving birth on Bob’s farm.

After being returned to Alex, the newly born calf spends its life wandering back to Bob’s farm. Bob feeds the calf each day and bathes it regularly, while Alex does nothing for the calf. The grown calf (now cow) then has its own calf with one of Bob’s other bulls.

Answer 12

Alex, because of the doctrine of increase.

Question 13

Ratione Soli

Answer 13

Construction Possession, a landowner is considered as being in possession of a resource that is on his or her land even if they do not have physical possession of it.

or the example I gave in the Canadian portion that the hunter uses traps and nets to capture wild animals.

Another example is that a landlord has constructive possession over his/her own land although the tenants have the actual physical possession of the land.

Question 14

What if, T, a trespasser, captures a wild animal on the land of O, a landowner, and carries it off to T’s own land where she confines it in a cage. Then, T2, another trespasser, trespasses on T’s land and takes away the animal.

Answer 14

When T2 trespasses on T’s land and carries off the animal, T does have “title” (the better right) as against T2. T’s title is relatively better than T2’s, even though it is relatively worse than O’s.

Question 15

Relative title

Answer 15

that means you look at title in relation to the parties involved.

Question 16

F has established a herd of deer that she keeps for pleasure and an occasional roast of venison. The deer roam about on open government property during the day but return to F’s farm at night. H, a hunter licensed to hunt deer on the gov’t land, shoots one of F’s deer during hunting season one day. F sues H for the return of the deer carcass.

Answer 16

F wins under the exception to the capture doctrine called animus revertendi.

Normally, a person who captures a wild animal loses the ownership right if the wild animal escapes. But if the animal is sufficiently domesticated to return frequently to the original capturer, then it still is owned by the capture.

What policy does this serve? The domestication of wild animals for use to the greater society.

Question 17

Popov v. Hayashi

Answer 17

Joint ownership.

Question 18

What is a finder?

Answer 18

A finder of lost property is a person who
(1) takes control of the lost property AND (Factum)
(2) has the intent to maintain possession of the property (animus possidendi)

Question 19

Main rule for the finder

Answer 19

The finder has title that is good against the world – except for the true owner or prior possessors (finders).

Question 20

Why protect the finder?

Answer 20

Protecting ownership (read property rights) encourages the productive use of resources — investment, mutually advantageous trades, and so on.

Question 21

Multiple-finder rule

Answer 21

When there’s a sequence of finders, the prior finder wins as against subsequent ones.

Question 22

True owner v. Finder

Answer 22

The true owner has a right to recover from the finder. The true owner’s title is relatively better, after all.

Question 23

What if the finder sells the goods before the owner can stop him?

Answer 23

The money from the Finder’s sale stands in place of the goods – legally, a constructive trust is created, which the true owner has a right to go after.

Question 24

What is bailment?

Answer 24

1. A bailment is the rightful possession of goods by a person (the bailee) who is not the owner.

ex. If you put your furniture in storage, the storage company is the bailee. Or if you leave your coat in a coat room at an event. Or car with valet parking.

2. All finders are bailees.

Question 25

Bailments require delivery of possession. Name all types of delivery.

Answer 25

Actual delivery: physically handing over the item.

Constructive delivery: transferring control of the object without actually delivering it (i.e. handing it over).
Ex. – giving the keys to a safe deposit box; or the keys to some heavy, bulky cabinet that cannot be easily moved; or the keys to a car.

Symbolic delivery: occurs when the bailor gives the bailee some “thing” symbolizing the object of the bailment.
Ex. – usually this means a transfer of use by a written instrument

Question 26

A BAILMENT is the transfer and delivery of possession (from the bailor) of personal property to another (the bailee). True of false

Answer 26

True.

Question 27

What implications of bailee’s responsibilities can be derived from bailment?

Answer 27

1. Where the bailee’s purpose for holding the item is often for safekeeping, repair, transportation, or for some other purpose (Obligation to take care of the items), AND
2. Where the return of the item in the same condition (or substantially the same) is contemplated by the bailor. (Obligation to return to true owner)

Note: This means that re-delivery of the item is required (or expected) or else the bailor would never give the item to the bailee in the first place.

3. Strict liability at Common Law: A failure to return the item subjects the bailee to strict liability. (The law heavily protects bailments because they often occur in life.)

Question 28

In the early evening, David parks his car with the valet at a local restaurant. He gives his car keys to the valet, who asks David how long it will be before David returns. David says he will return at 2 a.m., two hours after the restaurant valet closes. The valet says no problem, and that he’ll move the car to a well-lit space and put David’s keys just inside the car’s exhaust pipe. David can then get access to his car after the lot closes and the valet has gone home. David nods in assent to this suggestion. But when David returns at 2 a.m., his car has vanished.

David sues the parking lot owner for conversion of the vehicle. Who wins and why?

Answer 28

David wins. The transfer of the keys and moving of the vehicle suggest that delivery and assent was met for there to be a bailment. However, there was no delivery of the key so no assent was met. The rule of strict liability (or a presumption of negligence in some US states) applies, which would make the parking lot owner liable regardless of David’s assent.

Question 29

Owner of the locus (place found) v. the finder?

Answer 29

Generally, the owner of the locus has many rules that protect them (e.g., the law of trespass, the right of privacy, etc.), so they have a much stronger right than a finder.

BUT…
The expectations of an owner about rights against a finder differ depending upon whether the premises are open to the public.
Compare: If the item is found in the supermarket, you own v. if it is found in your residence.

Question 30

If I mortally wounded an animal in a public space, but it ran to a private land, I could capture it on a private land.

Do I have the entitlement to the animal I captured on the private land?

Answer 30

Yes, because when I mortally wounded an animal in a public space, I had constructive possession over that wounded animal. Although it ran to a private land, I still hold the possession right.

Question 31

When is something lost?

Answer 31

when the owner inadvertently loses possession of it.

Question 32

When is something mislaid?

Answer 32

when the owner intentionally places it somewhere but can’t recall where it was or forgot to retrieve it.

Question 33

Mislaid vs. Lost items

Answer 33

If the item is mislaid, the owner of the place where the object is found (the locus) usually wins.

If the property is lost, then it usually goes to the finder if the place is open to the public (because the true owner is unlikely to find it because it is “lost”)

Question 34

Abandoned Property

Answer 34

Abandoned property is when the owner intentionally relinquishes all legal rights to the property with no intention of conferring rights on someone else –you aren’t selling it or giving it to someone

Intent to abandon must be proven; mere passage of time isn’t enough.

When the owner abandons property, ownership goes to the finder – period. Not questionable at all.

Question 35

Treasure Trove (box)

Answer 35

US law treats it as mislaid property or lost property.

In cases where the treasure trove is buried, American courts give it to the owner of the land where it was found. (Why do you think this is?)

Question 36

Jacque v. Steenberg Homes

Answer 36

The right to exclude is one of the most essential sticks in the bundle of rights that are commonly characterized as property.

Ratio: Punitive damages can be rewarded when nominal damages have been rewarded.

Private landowners should be able to feel confident that wrongdoers who trespass upon their land will be appropriately punished.
When landowners have such confidence, they are less likely to engage in self-help. (Like guns)

Question 37

What is civil trespass?

Answer 37

An unprivileged, intentional encroachment upon property owned by another.

Intent does not require the person to intend to trespass - just that they intended to do an act. (Such as walking)

doesn’t matter whether you know you’re on private land or not.

Question 38

Commonwealth v. Magadini - Limitations on Right to Exclude

Answer 38

The common-law defence of necessity “exonerates one who commits a crime under the pressure of the circumstances if the harm that would have resulted from compliance with the law exceeds the harm actually resulting from the defendant’s violation of the law.”

Ex. If I don’t trespass, I will die. therefore I’m allowed to trespass.

Question 39

The Necessity Defense (4 Elements)

Answer 39

Elements of Necessity Defense:

1. A clear and imminent danger
2. A reasonable expectation that the action will be effective to abate the danger
3. There is no reasonable legal alternative that can abate the danger
4. The legislature has not acted to preclude the necessity defense

Question 40

Right to Destroy

Answer 40

Living Property Owners: U.S. State property laws usually permit a living owner to engage in these acts (subject to some exceptions for landmarked buildings, environmental protection, etc.)

Deceased Property Owners: States usually will not enforce a provision in a will directing that valuable property be destroyed.

Question 41

Jane, a wealthy Michigan woman, wanted to be buried with her 10-carat, blue diamond ring. Could Jane’s heirs stop her from being buried with it?

Answer 41

Probably not. Many people are buried with their valuable possessions, and it’s has been routinely allowed.

Question 42

Trees growing on your property?

Answer 42

Real property. They are attached to the land.

Question 43

What is a fixture?

Answer 43

Fixtures are personal property that has been permanently attached to real property, but which could be removed.

Ex. dishwasher that was installed in the cabinetry.

Three elements for a fixture:
1. Annexation – attachment to the real property
2. Intent to annex
3. Adaptation – personal property must be adapted or applied to some larger function or component of the real property (light fixtures, for example)

Question 44

What is Adverse Possession

Answer 44

Adverse Possession allows a person - who is not the legal owner of the property and who may have entered as a trespasser - to become the legal owner of the property if that person uses the property for enough years to satisfy the state’s statute of limitations period.

Question 45

The adverse possessor will seek a ____________ asking the court to rule that the person owns the property by adverse possession

Answer 45

declaratory judgement

Question 46

The Adverse possessor has the burden of proof of all the elements. T or F

Answer 46

True

Question 47

Why allow adverse possession?

Answer 47

(1) Avoiding stale claims: The purpose is to bar the assertion of claims based on old, unreliable evidence by limiting the timeframe to bring lawsuits.

(2) To correct title errors: Deeds sometimes contain errors that impact the buyer’s title (many times lawyers make these errors).
For example, the deed may be defective because it was improperly executed or it may improperly describe the transferred property. (not signed or witnessed).

(3) To protect personal attachments: people regard loss of an asset in hand (that they are using) as more significant than losing an opportunity they never used or rarely used.

(4) To punish dormant owners: This is called the “sleeping principle” because it punishes owners for sleeping on their property rights in favor of someone actively asserting the property rights – the adverse possessor.

(5) To reward active users: This is called the “earning theory,” which rewards those who turn unused or dilapidated property into something that is used and more valuable to society.

Question 48

Adverse possession of government land

Answer 48

No can do. AP doesn’t apply.

Question 49

The elements of adverse possession

Answer 49

OCEAN

Question 50

What is actual entry of adverse possessor

Answer 50

Actually entering the land is required because it triggers the running of the SOL.

It also helps stake out the property that the adverse possessor is claiming – 1 acre, 80 acres, etc.

It gives notice to the true owner and others who come to the property that the adverse possessor is using the property.

Question 51

A person is not required to actually live on the property if the person puts the property to use in the way those in the normal community would expect. T or F.

Answer 51

True

Question 52

What is exclusive possession?

Answer 52

The adverse possessor’s use cannot be shared with the true owner or be shared with the public in general.

Question 53

Multiple-adverse-possessor rule

Answer 53

If there are two adverse possessors (who are not partners), then the first adverse possessor has a right to oust the later adverse possessor.

Question 54

Open and Notorious

Answer 54

Open: The purpose of “Open” is to ensure that the adverse possessor’s entry and other acts of use are known (or should be known) to the true owner.
Ex. Putting up buildings, growing crops, keeping animals, or putting up fences are all things that would put the true owner on notice.

Notorious is aimed at constructive notice.
Notorious test: If the adverse possessor’s acts would be notice to an ordinary person, then the owner is regarded as knowing what the adverse possessor did.

Question 55

Adverse

Answer 55

Hostile (or adverse) under a claim of right: use that is without the owner’s permission and against the owner’s interests.

Question 56

Continuous and uninterrupted

Answer 56

Possession must be continuous for the statutory period.

Continuity: The person may come and go in the ordinary course of using the property
Ex. Using a summer fishing camp for regular summer fishing trips is allowed.

Interruption: The true owner can interrupt this element by (1) bringing an ejectment action OR (2) by re-entering the property.
When an ejectment action prevails, the SOL time limit starts from the beginning again.

Question 57

Three different standards of Hostility (Adverse)

Answer 57

(1) Objective standard (majority approach): if the adverse possessor occupied and used the land in the way that the true owner of the land would, then adversity/hostility is established.
For this standard, the adverse possessor’s state of mind is irrelevant. All that matters is the conduct of the adverse possessor.

(2) Good-faith standard: This view requires a good-faith claim. The adverse possessor must think, “I thought I owned it” to have a claim. See p. 116 notes.

(3) Aggressive-trespass standard: The state of mind is, “I didn’t think I owned it, but I intended to make it mine.” So the adverse possessor must intend to take the property even if they know it doesn’t belong to them. (aka: Bad-Faith Standard)

Question 58

Color of Title (AP)

Answer 58

Refers to a claim for adverse possession that is founded on a written instrument (a deed, a will) or a judgement that is for some reason defective.

color-of-title AP gives the adverse possessor a claim to all the property listed in the document (deed, will, etc) even if the AP is only using part of the property.
Ex. If AP only uses 5 acres of an 80-acre parcel but has a faulty deed for the entire 80-acre property, then the adverse possessor “actually possesses” the 5 acres in use and “constructively possesses” the other 75 acres.

Question 59

non-color of title (AP)

Answer 59

For non-color-of-title AP, the adverse possessor can only get title to the portion of land that he or she adversely possessed.
Ex. So if an AP only uses 5 acres of an 80-acre property, the AP only gets title to that 5 acres.

Question 60

Tacking (AP)

Answer 60

Tacking is using the periods that prior AP’s occupied the land (before you acquired it) to show that you met the SOL time requirement.

It is permitted when if successive occupants are in privity, and they are in privity if there is a voluntary transfer of either an estate or possession from one occupant to another. .

ex. Privity of estate: Exists between successive adverse possessors when A, who possesses for less than the SOL period, voluntarily transfers the property to B, who then possesses for a period that (together with A’s period), exceeds the SOL period.

Key exception: But privity of estate does not exist if A abandons possession after less than the statutory period and B takes over possession.

There must be an action of transferring the property to the other person.

Question 61

Disability as it related to the running of the Statute of Limitation (SOL)

Answer 61

In every state, the SOL is extended if certain, statutorily specified disabilities are present. States differ somewhat, but common disabilities are:
You are a minor;
Mentally incompetent;
In jail;
Overseas for military service.

If the true owner is any of the above, SOL will extend.
However, once the true owner died, SOL starts running.

Question 62

Disability is disregarded because disabilities cannot be tacked together, whether in one person or a series of persons. True or False

Answer 62

True.

Ex. Fact pattern: O is the owner of a lot in 1984, and A enters adversely on May 1, 1984. (The same disability statute applies.)
O is insane in 1984. O dies insane and intestate (without a will) in 2007. O’s heir, H, is 6 years old in 2007 when O dies. When would the statute expire for H to bring a claim again A?
2017. H’s disability is disregarded because disabilities cannot be tacked together, whether in one person or a series of persons.

Question 63

Four types of Tenancies for leaseholds

Answer 63

Term of Years

Periodic Tenancy

Tenancy at Will

Tenancy at Sufferance: Holdover Tenancies

Question 64

What is a term of years?

Answer 64

A term of years tenancy is an estate that lasts for some fixed period. (The term must be for a fixed period, but it can be terminable earlier upon the happening of some event.)

Notice needed to end the estate? Because the term of years is fixed – no notice of termination of the leasehold is needed to end the estate.

Note: Despite the name, the period can be for one day, two months, or 3000 years.

At common law, there was no limit on the length of years permitted, but some States statutes limit the duration.

Question 65

What is a periodic tenancy? month-to-month tenancy

Answer 65

A period tenancy is a lease for a fixed period that continues for succeeding periods until either the landlord or the tenant gives notice of termination. (E.g. month-to-month leases, year-to-year leases, etc.)

Notice is needed to end the estate. If notice is NOT given, the period is automatically extended for another period.

How much notice? At common law, 6 months’ notice is required to terminate a year-to-year lease.

For periods shorter than a year, common law required notice to terminate equal to the length of the period, but not to exceed 6 months.

Notice terminates the tenancy at the end of the period – not in the middle.

Question 66

A month-to-month lease must give at least 30 days notice. T or F

Answer 66

True.

Question 67

Non-fixed term tenancy

Answer 67

The opposite of Term of years tenancy with fixed beginning date and end date. An example of this is the month-to-month lease.

Question 68

Tenancies at sufferance

Answer 68

A tenancy at sufferance arises when a tenant remains in possession after the termination of the tenancy.

There are two options for the landlord: 1) eviction 2) consent to the creation of a new tenancy agreement. (express or implied)

Question 69

Holdover creates what kind of tenancy agreement?

Answer 69

Periodic tenancy that is equal to the length of the original term.

Question 70

The tenancy at will

Answer 70

A tenancy at will is a tenancy of no fixed period that goes as long as both landlord and tenant desire it.

Question 71

How do tenancies at will end?

Answer 71

1. When one of the parties terminates it.
2. At the death of either party

Notice? Not at common law, but modern statutes usually require 30 days’ notice (but you need not wait until the end of the period like in a periodic tenancy).

Question 72

tell your landlord clients to include a holdover provision that increases the rental rate if tenants hold over.

Answer 72

Yes

Question 73

Do leases need to be in writing?

Answer 73

All (but a few) U.S. jurisdictions require that leases of one year or longer to be in writing.
Oral leases are permitted in almost all U.S. jurisdictions for leases less than a year.

Question 74

What is Fair Housing?

Answer 74

Fair housing is the right of all people to be free from discrimination in:
1. Rentals
2. Sales of homes
3. Financing of housing

Question 75

What is discrimination under fair housing?

Answer 75

When a rental applicant, tenant, or home purchaser is treated in a different way than others because of their membership in a protected class.

Question 76

How is landlord-tenant law different from fair housing act?

Answer 76

Landlord-tenant laws cover general rights and responsibilities of rental tenants and housing providers
Fair housing laws cover rights of renters and home buyers to be free from discrimination in their choice of housing and treatment in housing rental, sales and financing

Question 77

Advertisement under FHA

Answer 77

A landlord or manager can’t use words that show they prefer or don’t want a certain kind of tenant (based on protected class).
Ex., A housing provider can’t refuse to rent just because you don’t speak English well.

Question 78

A property manager can’t claim an apartment is not for rent, when it really is available.

Answer 78

True

Question 79

A landlord can’t ask about your nationality or immigration status.

Answer 79

True

Question 80

A LL can’t refuse to rent a 2-bedroom unit to a couple with three small children.

Answer 80

True

Question 81

Is being an alcoholic a disability?

Answer 81

Yes. “Disability” means that a person has a physical or mental condition that seriously limits a major life activity

Question 82

Is Current illegal drug users disabled people?

Answer 82

No.

Question 83

Landlord cannot ask

Answer 83

Do you have a disability?
How serious is your disability?
Do you take medications?
Can I see your medical records?
Ever been in drug or alcohol rehab?
Are you able to live independently?
What does that service animal do?

Question 84

Retaliation is prohibited after a tenant stood up for his or her fair housing rights.

Answer 84

true. Retaliation happens when a housing provider takes a negative action after:
an applicant or resident has stood up for his or her fair housing rights
someone helps another person stand up for their fair housing rights
someone is a witness in a fair housing investigation.

Negative action = eviction, raising rent, refusal to renew lease for no legit reason, etc.

Question 85

Selecting Female roommates or female tenants violates FHA under recent case law. T or F

Answer 85

True.

Question 86

Sublease

Answer 86

A sublease transfer less than the entire interest remaining in the lead property.

With subleases, the LL sues the original tenant, who pays the LL because there is no privity with the subleasee. The original tenant then sues the new subleasee to recover what was paid to LL.

Question 87

Assignments

Answer 87

An assignment transfers all the remaining time and space of the leased premises.

With assignments, the LL can sue the new tenant directly because there is privity of estate with the new tenant who assumed the entire term of the lease.

NOTE: The LL can also sue the original tenant under the contractual terms of the lease because there is still privity of contract with the original tenant.

Question 88

Privity of estate and privity of contract for Assignment and Sublease

Answer 88

Assignment: Original tenant has privity of contract with the landlord and the assignee has the privity of estate with the landlord. Assignee has limited privity of contract with the OT.

Sublease: OT has both Privity of Contract and Estate with the landlord. Subleasee has no privity of contract and estate with the landlord but has privity of contract with OT.

Question 89

The law does not like the landlord to resort to self-help

Answer 89

Yes, the landlord couldn’t breach the peace. A LL entitled to possession under common law could resort to self help without fear of civil liability, so long as the LL used no more force than was reasonably necessary.

Question 90

What is surrender?

Answer 90

Surrender is an agreement between LL and Tenant to terminate the tenancy prematurely.

Ex. If the LL agrees to keep 2-months prepaid rent and release a tenant from lease’s obligations, then this would be a surrender.

Question 91

What is abandonment?

Answer 91

Abandonment is essentially an implied surrender. An abandonment occurs when the tenant vacates the leased property without justification and without any present intent to return – and then defaults on payment of rent.

Common-Law Rule: The LL did not need to mitigate damages if a tenant abandons. (LL could just wait until lease ended and sue for damages. No need to try and re-rent.)

Modern rule: The LL has a duty to use reasonable efforts to mitigate damages if a tenant abandons the premises.

The duty to mitigate requires the LL not to discourage offers to rent. The LL is free to decide to refuse these offers, but if the refusal is not reasonable, then the LL cannot charge the abandoning tenant for the unrented months.

Question 92

Tenants Have a Duty Not to Commit Waste

Answer 92

True,
Two main types of waste:
Voluntary waste (aka Affirmative Waste): direct, willful, or intentional injury to the premises.
Permissive waste is the result of neglect or omission, such as allowing a structure on the premises to deteriorate.

Question 93

In every lease, there is an implied duty for tenants to redeliver the premises to LL in the same condition as it was received – but reasonable wear and tear is allowed.

Answer 93

True

Question 94

Unauthorized changes to the property are typically held to constitute waste.

Answer 94

True

Question 95

If the T fails to return the premises to the leased state, a LL can receive

Answer 95

Damages equal to the loss of value due to the waste OR
The cost to return the premises to its prior condition.

Question 96

American rule and English rule on Landlord’s duty to deliver possession.

Answer 96

American rule: if previous tenant wanna holdover, it is up to the new tenant to evict the previous tenant.

Policy rationale: The T has sufficient legal rights and has the incentive to act quickly to obtain possession.

English rule: LL is obligated to deliver legal possession and actual possession to the new tenant.

Policy rationale: The LL has the greater ability to guard against the risk of trespassers and holdovers.

Question 97

Independent Covenants

Answer 97

At common law, a lease included a bundle of covenants – both express and implied – that governed the landlord’s and tenant’s duties.
E.g. the implied right of a tenant to re-deliver the premises; the covenant of title running from LL to T; the covenant of quiet enjoyment.

Example: If a LL was obligated to repair the premises but failed to do so, the Tenant was still obligated to perform his or her covenants – including the covenant to pay rent!

Question 98

One exception to independent Covenants

Answer 98

The covenant to pay rent was dependent upon the Tenant having undisturbed possession by the LL.

In every lease, there is a covenant of quiet enjoyment that the landlord will not disturb the T’s possession.

Even at common law, this covenant was so important that any breach of it by the LL would allow the T not to have to pay rent.

Question 99

Implied Warranty of Habitability

Answer 99

An implied warranty of habitability is an unstated guarantee that a rental property meets basic living and safety standards before occupation and will continue to meet them for the duration of the occupancy.

How to determine a breach? Whether a reasonable person would find the premises uninhabitable.

A T must give the LL notice and a reasonable time to fix before proceeding with a IWH claim.

Question 100

Statute of Frauds

Answer 100

For property purposes, the SOF provides: No interest in land can be created or transferred except by a written interest signed by the party to be bound.
Thus, deeds only need to be signed by the seller!

(1) A signature by the party sought to be bound – the seller in real estate transactions.

(2) A property description – the agreement must describe the land covered by the transaction.

(3) A price – the writing must state the sale price.

Question 101

Exceptions to SOF

Answer 101

Exception #1: Part Performance
Part performance allows the specific enforcement of ORAL AGREEMENTS when certain acts have been performed by one of the parties to the agreement – that is, not enforcing the oral agreement would cause the other irreparable injury.
These acts vary from jurisdiction to jurisdiction, but typically include (1) the buyer’s taking possession and paying all or part of the purchase price or (2) the buyer making valuable improvements to the property based on some oral agreement.

Exception #2: Estoppel
Estoppel applies when unconscionable injury would result from denying enforcement of the ORAL contract after one party has been induced by the other to seriously change their position in reliance on the contract.

Question 102

O, owner of Blackacre, executes and delivers a deed for Blackacre to her daughter, A, as a gift. The deed is not recorded. Subsequently, O tells A that she would like Blackacre back, and A, a dutiful daughter, hands the deed back to O and says, “The land is yours again.” O tears up the deed. Who owns Blackacre?

Answer 102

A owns Blackacre. Since title passed to A by the deed from O, the Statute of Frauds requires a deed from A to O signed by A to pass title back to O.

Question 103

The purchase agreement SHOULD spell out the risk of loss so that way your clients will know what will happen if there is some loss.

Answer 103

Yes

Question 104

Merger Doctrine

Answer 104

Purchase agreement merged with the deed.

Effect: The buyer can no longer sue the seller based on the promises in the purchase agreement. The buyer can only sue based on what’s in the deed.

Question 105

Remedies for breach of purchase agreement

Answer 105

If a purchase agreement is breached, there are three remedies available for the NON-BREACHING PARTY:

Damages

Retention of the deposit (if buyer breaches) or refunding of the deposit (if seller breaches);

Specific Performance