prop outline sem one

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1 Property Fall Semester Outline I. Definition of Property II. Possession A. Elements B. Abandoned Property C. Bailments III. Gifts A. Elements B. Inter vivos C. Gifts Causa Mortis IV. Adverse Possession V. Freehold Estates VI. Concurrent Interests A. Tenancy in Common B. Joint Tenancy C. Tenancy by the Entirety VII. Non-Freehold Estates A. Landlord/Tenant Relationships

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Property Outline

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Property Fall Semester OutlineI. Definition of PropertyII. PossessionA. ElementsB. Abandoned PropertyC. BailmentsIII. GiftsA. Elements B. Inter vivosC. Gifts Causa Mortis IV. Adverse Possession V. Freehold Estates VI. Concurrent InterestsA. Tenancy in CommonB. Joint Tenancy C. Tenancy by the Entirety VII. Non-Freehold EstatesA. Landlord/Tenant Relationships

I. DEFINITIONSI. Property A. Property is neither an intangible nor a tangible thing but rather a conceptB. Rights with MARKET VALUE (legal market)1. Possible to separate rights and add conditions or limit useC. Rights in intangibles can constitute propertyD. Not all physical things give rise to rights ex. Endangered species that cannot be captured, bought, or soldE. Legal rights do not necessarily constitute property ex. Right to vote is not marketable and therefore not property II. OwnershipA. Property in a particular partyB. Harder to prove ownership than possessionC. Requires appropriate documentation

III. Property Causes of Action Action of, for, or in Replevin: request for return of a thing unlawfully held in addition to money damages for injury, if any, to the thing Action of Trover: request for money damages to the equal value of a thing detained and not returned; owner loses the right to possess and own the property Action of Trespass to Chattels: an action for trespass is a request for relief from interference with possession and money damages for any injury to the thing detained, as well as damages for the lost value of its use Action for conversion: request for money damages equal to the value of a thing unlawfully detained and not returned or alternatively a court order ordering the party possession to return the thing.

II. POSSESSIONI. Elements of PossessionA. (1) Physical control over property and (2) intent to control and exclude othersB. Control: must be able to(1) Utilize the property (2) Given notice of the claim (use is notice) (3) Exclude others from using it (also implies notice)II. Abandoned Property A. Abandonment: words or conduct manifesting in intent to permanently relinquish ownership or possession ex. Extensive non-useB. Near non-use does NOT mean abandonmentEads v. BrazeltonAbandoned property may be claimed by acts of possession. Discovery in and of itself is not enough to constitute possession rather, active (and timely?) attempts to recover the possession is required. III. BailmentsA. Bailment is the relationship between the owner of a chattel and one who possesses it lawfullyB. A bailee has an obligation to care for the chattel as would a reasonable person under the circumstances.C. Exculpatory Clauses1) Notices exempting the bailee of liability. These are often not enforceable unless the bailee makes it explicit and can prove the bailor was aware. This is to stop bailees from exempting themselves from the responsibility which bailment entails.D. Prima facie case: 1) In all actions by a bailor against bailee for loss or damage to personal property, P must show that the property was delivered to D in good condition and that it was not returned or redelivered according to contract. Allen v. Hyatt Regency2) D was negligent and the burden of proof shifts to the defendant to disprove the assumed negligence.III. GIFTSI. Law of donative transfers requires1. Intent 2. Delivery3. Acceptance

One who claims ownership by voluntary transfer must show that the transferor manifested intent to transfer the claimed interest and that the formalities of delivery and acceptance have been observed.In Re Cohn 213There are circumstances which allow for the foregoing of the delivery element so long as the question of intent may be reasonably satisfied II. Support for the Delivery Requirement Donors should be protected against spur of the moment inclinations to donate Delivery may bar some false claims It is a safeguard against jurors making mistakes when deciding intent A promise to donate or intention to transfer in the future is legally ineffective. A transfer of ownership cannot be given effect unless at the moment it occurs it is sustained by the owners manifested intent

III. Inter Vivos Gifts 213 Gifts made during the life time of the giver require intent, delivery and acceptance A reserved life estate lets you transfer possession but you reserve the right to use that property during your lifetime A business entity can make and receive inter vivos gifts Gruen v. Gruen 217Inter vivos gifts can be made with reserved life estate terms, and in those cases literal and immediate delivery of the property is unnecessary as it defeats the purpose CONDITIONAL GIFTSOne that is subject to or dependent on a condition. A conditional gift can be revoked if the recipient does not fulfill the conditions attached to the gift. A gift is a conditional gift and it is not final until some future event occurs. If the particular event does not occur, the person making the gift has the right to get back the gift. Lindh v. Surman 219 (an exception; not a standard inter vivos gift)Precedent dictates that marriage is the accepted condition which would vest title to the donee. The court is reluctant to delve into the issues of fault because it opens doors where the court declines to adjudicate.

IV. Gifts Causa Mortis 1. Must be made in view of the donors impending death2. The owner must die of the CONTEMPLATED disorder or peril*The gift is conditional upon death 3. There must be delivery of the thing given *Delivery must be such as is actual, unequivocal and complete during the lifetime of the donor, wholly divesting him of the possession, dominion, and control thereof *Except when no actual delivery can be made or the situation is incompatible with the performance of such a ceremony4. Donor must be competent to make a the gift5. Intent upon the donors part to make the gift6. Acceptance by the donee Policy: Why is delivery a key element? To eliminate delivery would permit any writing to effectuate a testamentary transfer, even though it does not comply with the requirements of the statute of wills Foster v. Reiss 222Without delivery (and in addition the incapacity of one party) invalidates the gift. Scherer v. Hyland 230 In the case of gifts causa mortis suicide and failure to deliver does not invalidate a transfer if the decedents intent is unquestioned and she, to the best of her ability given the context, effectuated that intent.

IV. UNAUTHORIZED POSSESSIONAnderson v. Goldberg Facts: Anderson was liable for the logs he took even though they were not obtained rightfully in the first placeHolding: The only way to challenge someone elses possession (even if illegally obtained) is to show that you have a better claim or superior title to the property

I. Adverse Possession of Real Property A. A person who trespasses on another individuals property can acquire ownership to said propertyB. Theories:1) Labor: Those who possess and productively use property should be rewarded with ownership2) Negligence: True owners negligence or inaction in protecting his real property from trespass 3) Practical way to resolve ownership disputes

II. ELEMENTS (AVHECS)(1) Actual(2) Visible(3) Hostile(4) Exclusive(5) Continuous(6) Statutory 1) Actual: Physical control over the property; enough control that is would constitute possession. Exception to actuality: color of title2) Visible: Such possession as would put a reasonable community member on notice of the adverse claim OR Possession that is actually known by the title holder (even if not obviously visible) 3) Hostile: In every jurisdiction: the possession is without the permission of the title holderMajority View: all that need be true is possession without permission Minority Views: 1) Claimant must both be there non-permissibly and also have an innocent state of mind (acting in good faith; law should not reward intentional wrongdoer)2) Claimant must both be there non-permissibly and also have a guilty state of mind (intent to make claim on anothers property or its not actually hostile) 4) Exclusive: Possession is not shared with the title holder or others except permissibly by the claimant 5) Continuous: Possession and use that is ordinary given the nature of the property6) Statutory Period:a) Possession beyond statute of limitations (vary by jurisdiction 5-25 yrs. avg.) b) When elements 1-5 are simultaneously true the clock starts running;c) Statute of limitations for replevin SL will commence at the time the injured party knew, or should have known, of a COA UNLESS the injured party in question fails to exercise reasonable and due diligence in discovering facts which form the basis for the cause of action.

Marengo Cave Co. v. Ross 168Adverse possession requires that the owner knew, or should have known, of anothers possession, which arguably gives the owner an opportunity to do something about it prior to running of the statutory period.Cave co. argued adverse possession- the court held it was not visible and therefore not valid. III. Severance: Can someone claiming adverse possession of surface land also laid claim to underground materials? Depends- have the materials been separated already? IV. Mistaken Improvement of Land: An equity court can order relief deemed fairV. Prescription: Persons can acquire less than full fee simple ownership when they use anothers property land with a more limited use commensurate with easements. Ex. To create a path/roadwayVI. Tacking (only in privity) 1) An adverse claimants right to add successive periods of adverse possession together where each set of two successive possessors is in privity2) Privity: an adequate legal relationship

Howard v. Kunto pg. 178 Tacking of possession by subsequent occupants is permitted AND continuous use can be satisfied by summer possession given that this was the intended use of the property

V. FREEHOLD ESTATES Freehold Estate1. A possessory interest in land 2. Of indeterminate/indefinite duration (interest will cease to exist at some future point, ex. life estate)3. Six Estate Types1. Fee Simple Absolute FSA2. Life Estate LE3. Fee Tail FT 4. Fee Simple Determinable FSD5. Fee Simple Subject to Condition and Subsequent Right to ReentryFSSCS6. Fee Simple Subject to Executory Limitation FSSEL 4. A person and their probate estate are the same entity in this area. You must be alive to have an any legally recognized interest. I. Fee Simple Absolute 254A. A freehold estate which is unlimited as to duration, disposition and descendability; the most complete set of legal rights that can be owed in real property. B. Not defeasible on the occurrence of a condition C. Creating language: 1. GR to A and his heirs or (although the heirs have no interest at that time)2. GR to A in a fee simple absolute, or3. GR (owner of FSA) all my right, title, and interest to A or4. GR to A (by statute)Cole v. Steinlauf 255 A provision allowed for P to back out of a land sale and recover payments if D could not offer the fee simple absolute free and clear. To create an estate of inheritance it is necessary to use heirs but this title did not. P was justified in backing out to avoid future trouble with a questionable title. A sold to B who old to C who sold to the Defendant who is trying to sell to the Plaintiff; the deed between A and B is suspect Executory period is directly before closing and during this time people do inspections, title searches etc.

HEIRS: those who take the under the relevant statutes of descent; devisees if land is being transmitted, or legatees if personal property is involved. Requiring Heir is outdated. If A owns a FSA and gives property to X, it is assumed he is transferring an FSA unless he explicitly states otherwise

II. Life Estate and Remainder or Reversion 267A. A freehold estate limited in duration to the life or lives of one or more human beings B. Future interest in a grantee associated with a LE is called a remainder; the remainder becomes possessory at the death of the last person surviving among all persons designated as measuring livesC. Future interest in the grantor associated with the life estate is called a reversion D. Creating Language 1. GR to A for life, then to B and his heirs (A holds LE and B holds remainder in FSA)2. GR to A for the life of C, and then to B and his heirs (A holds a life estate pur autre vie (for the life of another) for the life of C, and B holds a remainder in FSA) 3. GR to A and B for the lives, then to the grantor (A and B hold a life estate, and the grantor holds a reversion rather than a remainder)4. GR to A for life, then to B for life, then to myself (A holds a life estate; B holds a remainder in life estate, and the grantor holds a reversion rather than a remainder) Lewis v Searles 268 P inherited property but upon her marriage was to take 1/3 possession and give the other 2/3 to other family members. P dies. Did she have a fee simple title or merely a life estate? Court held that All devisees are in fee simple if 1. No intent is expressed to create a life estate only AND2. No further devise is made to take effect after the death of the devisee Moore v. Phillips pg. 276 (P), the remaindermen, is suing for damages done to the property during the course of a life estate held by her estranged mother (D) Duties of a life tenant to remaindermen 1. A life tenant is considered in law to be a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen. He cannot injure or dispose of the property to the injury of the rights of the remaindermen, but he may use the property for his exclusive benefit and take all the income and profits2. It is the duty of a life tenant to keep the property subject to the life estate in repair so as to preserve the property and to prevent decay or waste3. Waste implies neglect or misconduct resulting in material damages or loss of property but does not include depreciation of property due to age and normal use 4. Waste may be voluntary or permissivea. Voluntary: deliberate or voluntary destructive actb. Permissive: failure of the tenant to exercise the ordinary care of a prudent man for preservation and protection of the estate5. Owner of a remainder has a number of remedies available to him against a life tenant during their life and aftera. Compensatory damages for injury sustainedb. Injunctive relief in equityc. Receivership6. When COA is permissive waste statute of limitations does not commence to run in favor of the expiration of tenancy. In some statutes the period commences at the time the waste is committed. 7. An action for waste may be lost by latches or assertion of estoppel; a. Latches are a lack of action but estoppel may be an affirmative act on the part of either party. b. Latches is not mere delay but a delay which works to disadvantage one party Waste: someone who lawfully has possession of real estate destroys it, misuses it, alters it, or neglects it in so that the interest of the persons having a subsequent right to possession is prejudiced in some way or there is a diminution in the value of the land being wasted. Oldfield v. Stoeco Homes, Inc. 281Facts: Ocean city sells Stoeco property under several conditions one of which was that Stoeco needed to fill/grade the land within a year. Stoeco was having difficulties and the city continually extended the time frame. Issues: Whether the deed created an estate in fee simple subject to a condition subsequent or an estate subject to a limitation (a fee simple determinable)

III. The Fee Tail and Remainder or ReversionA. A freehold estate by virtue of which a person owns land on behalf of himself and his lineage. Upon death of the possessor, the estate will pass to the closest lineal heir indefinitely. B. A party holding a fee tail estate can convey to another only a life estate limited to the life of the grantorC. Termination of an FTE occurs with the termination of the lineageD. Creating language 1. GR to A and the heirs of his body, then to myself2. GR to A and his issue, then to B and his heirs3. GR to A and his descendants and then to the grantor and his heirs4. GR to A and her lineal descendants, then to X IV. The Fee Simple Determinable and the Possibility (automatic) of ReverterA. A fee simple which1. Subject to automatic termination upon the occurrence of a specified condition2. Followed by a future interest in the grantor (possibility of reverter) 3. Possession reverts if condition occurs by operation of law (automatic)B. Creating Language1. GR to X so long as, while, during, until B, then to GR and heirs, myself and heirs, to GR in fee simple, (GR holds a possibility of reverter) Roberts v. Rhodes 289 Facts: In 1902 a quitclaim deed was made of land to the Montgomery County school district. The deed stated that the grant was made for school or cemetery purposes only. A second deed in 1908 was made to the Montgomery County school district and stated that the land so granted was to be used for school AND cemetery purposes only. Both deeds were grantsto their heirs and assigns. 1971 the school district sold the lands to Defendant, the lands had been used for school purposes. P was an heir of the original grantors and claimed a reversion interest in the land no longer being used for school purposes. The lower court found for P. The intermediate appellate court reversed the lower court and found that the deeds in 1902 and 1908 deeded a fee simple title to the school district not a fee simple determinable. P appealed.Issue: Does the language in the quitclaim deeds regarding the description of the purpose for which the land was to be used create a limitation on the title to the school district such that the heirs and assigns of the original grantors have a reversion interest in the lands when they are no longer used for school purposes?Holding: No, the difficulty in the case arose from the failure of the original deeds to provide any guidance as to what the parties intended to happen when the lands were no longer used for school purposes. The Court noted that the claim of P was based on a theory that the language of the original deeds created a fee simple determinable, and that thegeneralrule for creation of a fee simple determinable is that there must be language which provides that a fee simple estate is created which automatically expires on the occurrence of a stated event. In this case there was no such language in the deeds.Rule:the mere statement of the purposes of a conveyance will not limit the extent of the grant. Thus, the declaration in the deeds that the lands were to be used for school and/or cemetery purposes only, was not sufficient to limit the estate granted to the school district. The school district took a fee simple estate in the lands.

Leeco Gas & Oil Company v. County of Nueces 297In 1960 Leeco gift deeded property to Nueces County with reversionary interest so long as the property remained a park. In 1983, when the property was worth between $3 million and $5 million, the County condemned the reversionary interest, thinking that they might want to use the land for something else in the future, and gave Leeco $10,000. A trial court awarded Leeco $10 in nominal damages because the mere possibility of reverter has no ascertainable value because the fee simple defeasible is not probable to end within a relatively short period of time. Because the County knew of the reversionary interest when it accepted the deed, is the County estopped from condemning the reversionary interest?HeldNo, a government when exercising governmental powers is not subject to estoppel. If a governmental entity is a grantee of a reversionary interest and that same entity condemns the reversionary interest, must it pay the difference in value of the restricted and unrestricted fees?HeldYes; to hold otherwise would discourage gifts of real property to charities and governmental entities. Here reverter was not just some speculative event in the future, as the County was tossing around plans to give other uses to the land and wanted to be unencumbered with the possibility of reversion. Holding otherwise would allow government to get around obligations by preemptively condemning reversionary interests, which would discourage such gifts.ConcurThat's a good holding, but it would be better in the future if a political devision that has accepted a gift by grant of fee simple determinable interest begins condemnation proceedings, that act would count as a renunciation of the gift and cause the granted estate to terminate and revert back to the grantor in fee simple absolute.

V. Fee Simple Subject to Condition Subsequent and Right of Reentry (discretionary)A. A fee simple (no limit to inheritability) 1. Subject to termination upon the occurrence of a specified condition at the discretion of the grantor and2. Followed by a future interest in the grantor 3. Termination is not automatic by operation of law; GR must take the initiative to reclaim property. That initiative depends on the state, a claim in civil court, a notice of GRs intent, 4. Future interest of the GR is right of re-entry and power or termination5. Not automatic; GR must assert right of re-entry; courts differ on how to do this (civil suit, quiet title action, mere notice of GRs intentions) B. Creating Language 1. GR to A upon the condition that if A should X, then to the GR2. GR to A and her heirs but if A should X, then GR man re-enter.3. GR to A and her heirs, provided that A when A does X, GR may exercise his power of termination

Johnson v. City of Wheat Ridge 294Facts: In two separate conveyances Johnson conveyed land Wheat Ridge, subject to the condition subsequent that the land was to be used for a public park named for the grantor and that the fourteen acre grant was subject to the condition that public water supply and lavatories be placed on the premises within two years of the grant.Issue: Is the language of the deed such that reversion upon the condition is automatic? Has the statute of limitations run out?Holding: The specific language of the deed in question stated that the failure of the compliance with the conditions set out (public water supply and lavatories within two years) in the deed shall constitute a condition subsequent terminating the estate of the Grantee and its assigns and the Grantor, his heirs and assigns may re-enter and take possession of said premises. This language is an attempt to create an automatic right of re-entry in favor of P, as an heir of the grantor.However, The Court held that the breach of a condition subsequent does not cause title to revert automatically to the grantor or his heirs and that the use of a lawsuit to enforce the provisions of the deed is subject to the statute of limitations, which had since run out.

VI. The Fee Simple Subject to Executory Limitation and Executory InterestA. A fee simple which1. Subject to termination upon the occurrence of a specified condition AND2. followed by a future interest in a grantee automatically (executory interest) B. Creating Language1. GR to A so long as condition B is met, then to C 2. GR to A, but if A should do condition B, then to C and his heirs Future Interest1. Reversions2. Possibilities of Reverter3. Rights of Re-entry Kost v. Foster (1950) pg. 313Facts: John and Catherine Kost conveyed in a warranty deed their land to their son Ross Kost to use as a life estate, with remainder to his lawful childrenof which at the time he had five. Before he died, he had seven lawful children, and one of them, Oscar Durant Kost, was bankrupt and his portion went to Marshall C. Foster. The children sued Foster, saying that Oscar's remainder was not yet vested, as Ross was still alive, and therefore couldn't be transferred by bankruptcy.Held:Oscar's portion was vested in qualityhe would not have lost it by dying, although not in quantitymore children could have been born that would have reduced his interest. Contingent interests are created by specific language in the deed that create a condition precedent (e.g. "only to those children who survive him"). Otherwise, any conditions are conditions subsequent that make the vested remainder subject to divestment (e.g. "to his children, but if any die while he is alive the share goes to the rest of the children"). (Of course, all remainders are uncertain as to enjoyment, as the recipient of a vested or unvested remainder may die before the life estate is terminated.)

Abo Petroleum Co. v. Amstutz 319Facts: In 1908 by separate instruments which were called conditional deeds James and Amanda Turknett (grandparents of Defendants) conveyed life estates in two separate parcels to Ruby and Beulah (parents of the Defendants). The deeds called for the property to remain the daughters during her natural life, . . . and at her death to revert, vest in, and become the property absolute of her heir or heirs, meaning her children if she have any at her death, but if she die without heirs, then and in that event this said property and real estate shall vest in her estate. At the time neither daughter was married and neither daughter had any children. In 1911, the parents gave another deed to Beulah which purported to give absolute title to the grantee. Also, there were subsequent deeds on the same parcels to Beulah in 1916 and to Ruby as a correction deed. After the deeds had been made Beulah had three children and Ruby had four children. Beulah and Ruby attempted to convey fee simple interests in the property to predecessors of Plaintiff Abo Petroleum Company. The children of Beulah and Ruby argue that the their parents could only convey life estates in the property to the predecessors of Plaintiff Abo Petroleum Company. The Plaintiff contends that the deeds in 1911 and 1916 vested Beulah and Ruby with fee simple title which was then conveyed to Plaintiffs predecessors. The lower court found in favor of Abo Petroleum Company and the children appealed.Issues: Could the original grantees Beulah and Ruby have received any interest in the deeds which came after the creation of the life estate, such that the contingent remainders of the life estate are destroyed?Holding: No, judgment reversed. The Court held that the position of Abo Petroleum is that the subsequent conveyances to Beulah and Ruby caused the original grantors reversionary interest to merge with the life estates of the daughters and that the contingent remainders to the grandchildren were thus destroyed and the daughters took fee simple possession of the property which they later conveyed to Abos predecessors. This is an example of the doctrine of destruction of contingent remainders.The Court held that the doctrine of destructibility of contingent remainders has been almost universally rejected by modern authorities. The Court declines to applythe doctrine and finds that the subsequent deeds to Beulah and Ruby have no force and effect.

The daughters acquired no further interest in the property under the later deeds than what they had already, which was a life estate. Thus, their conveyance to Abo Petroleums predecessors could only be that of a life estate, even if it purported to be a fee simple.

Shelley v. Kramer 1948 pg. 91Facts: On February 16, 1911, thirty out of thirty-nine property owners in a neighborhood in St. Louis, Missouri entered into a restrictive covenant which stated that for a term of fifty years no property in the neighborhood could be sold or rented to any black or Asian persons. On August 11, 1945, Petitioners Shelley, who were black, bought a property in the neighborhood from Fitzgerald, and Petitioners were not aware of the restrictive covenant at the time of the purchase. Respondents, who were the other owners in the neighborhood, sued in the Circuit Court of St. Louis on the basis of the restrictive covenant with the intention of having the Court divest the Petitioners of their newly acquired property and revert title to Fitzgerald, or to some other person at the Courts discretion. The Circuit Court declined to enforce the agreement on the basis that not all of the property owners had signed the original covenant. The case was then appealed to the Missouri Supreme Court which reversed the Circuit Courts decision and held that the provisions of the covenant were enforceable against Petitioner. Petitioners then appealed to the U.S. Supreme Court.Issue: Does the action of the state court in enforcing the restrictive covenant deprive Petitioner of rights guaranteed by the Fourteenth Amendment and acts of Congress?Holding/Reasoning: Yes. The judgment of the Supreme Court of Missouri is reversed.First, the Court noted prior decisions and found that the restrictive agreements, standing alone, could not be regarded as a violation of any Fourteenth Amendment rights. The Court found that the requirement for state action was not met in a purely private and voluntary covenant. However, the Court found that in this case there was state action by virtue of the Supreme Court of Missouris decision to enforce the restrictive covenant. The Court found that state action includes actions by legislative bodies and also courts and judicial officials.The Court held that in granting judicial sanction to an agreement which, by its terms, would deprive the Petitioners of equal protections guaranteed by the Fourteenth Amendment is an action which cannot stand. Therefore, the Court held that the Supreme Court of Missouri had to be reversed.Because the Court decided the case on the question of equal protection it was unnecessary to consider the Petitioners arguments regarding due process and whether the Petitioners had been denied privileges and immunities accorded to citizens of the United States.

Capitol Federal Savings & Loan Association v. Smith 350Facts: The Plaintiffs, black people, assert ownership in this quiet title action of property which is purported to be under a racially restrictive covenant, Plaintiffs were seeking to have the cloud on title removed. The Defendants are property owners in the neighborhood who claim the Plaintiffs property based on the forfeiture provisions in the racially restrictive covenant which provide that forfeiture will be made upon placement of a notice of claim, which Defendants did. The trial court found for the Plaintiffs and stated that to enforce this agreement would have been a per se violation of the Fourteenth Amendment.Issue: Does the private racially restrictive covenantapply such that the Plaintiffs property is subject to forfeit under the covenants provisions?Held/Reasoning: No. The judgment is affirmed.The Defendants claimed that Shelley v. Kraemer, infra, was not controlling due to the fact that the court was not considering provisions relating to forfeiture or future interests in the land, which Defendants claimed were created by the terms of the racially restrictive covenant.The Court found that regardless of how the Defendants sought to characterize the effects or operation of the covenant, the attempt was to deprive the Plaintiffs of a right protected by the U.S. Constitution.The racially restrictive covenant is a nullity under Shelley v. Kraemer, infra, and its progeny, and noclaim can ever be supported by law which would violate the protections of the Fourteenth Amendment.Notes: This case is only tangentially related to future interests. As this Court noted, the case was probably brought to provide some rules for title abstractors to follow when faced with a racially restrictive covenant.

City of Klamath Falls v. Bell 356Facts: In 1925 a corporation gift deeded land to the City of Klamath Falls as long as the city used the land for a library, and thereafter unto Fred Schallock and Floyd Daggett, their heirs and assigns. The city closed the library in 1969 when the books were moved to another library. Thereafter, the city sued to quiet title in fee as to the land. The Defendants were all of the heirs of Schallock and Daggett. The grantor corporation, had been dissolved and the assets (including any interest in the property) were transferred to Fred Schallock and Floyd Daggett. Thereafter, all of the remaining heirs transferred their interest, if any, in the property to Defendant Marijane Flitcraft. The trial court found for the city based on its finding that the gift over to Fred Schallock and Floyd Daggett was void under the rule against perpetuities. The city argues that the interest was never passed to the heirs, heris argued that title automatically vested in S & Ds probate estate, and then the possibility of reverter had been passed down. Heirs prevail.

Corporation to the City, so long as used for library purposes, then to S & D.

Corporation attempted to create a fee simple subject to executor limitation and a shifting executory interest in S & D. (not an FSD or FSSCS b/c GR does no hold executory interest) Actually the interest is void under the rule against perpetuities; the city could maintain a library indefinitely (the interest may not vest or terminate within the life plus 21 yrs. of the city) Void the executory interest; Corporation to the city, so long as used for library purposes Now a FSD with GR (Corp.) holds the possibility of reverter, heris of GR hold POR.

PERPETUITIES REFORM:Some states abolish rule entirelyOthers substitute a 90 yr. rule USRAP (Mass. for example)Wait and See Rule wait through a lifetime and 21 yearsCy Pres future interests are reformed so that they do not violate the rule

Present Possessory Estates

Present EstateExamplesDurationFuture Interest in GrantorFuture Interest in 3P

Fee Simple Absolute

To A & his heirsForeverNoneNone

Fee Simple DeterminableTo A & his heirs so long as...until...while...As long as condition is met, then automatically to grantorPORNone

Fee Simple Subject to Condition SubsequentTo A & his heirs, but if...upon condition that...provided that...however...Until happening of named event and re-entry by grantorNot automaticRORNone

Fee Simple Subject to an Executory LimitationTo A & his heirs, for so long as..., and if not..., to B.

To A & his heirs, but if..., to B. As long as condition is met, then to 3P.

Until happening of event.None Executory Interest

Springing OR Shifting

Fee TailTo A & the heirs of his bodyUntil A and his line die outReversion (remainder is possible)

Life Estate (may be defeasible)To A for life, orTo A for the life of B

To A for life, then to B

Until end of measuring life Reversion

Remainder

1. Doctrine of Destructibility of Contingent Remainders: Contingent remainder is destroyed if it does not vest at or before the termination of the preceding life estate.0. Abolished in almost all states, and lawyers can easily avoid the rule by careful drafting0. Ex: O conveys to A for life, then to the heirs of B. A has life estate. Bs heirs have a contingent remainder in FSA, since unascertained. O has a reversion in FSA. If A dies and B is alive (dn have heirs yet), then Bs heirs are divested.0. In jurisdictions w/o this rule, if A dies and B is alive, O gets possession in FSSEL and Bs heirs have an executory interest and will divest O when ascertained.

1. Rule in Shelleys Case: 1. Banned practice of making life estate in A, remainder to As heirs (merge remainder in ancestors)1. GR to A for life, then As heirs (A: FSA)

1. Doctrine of Worthier Title: a) Intervivos conveyance of any contingent remainder or executory interest to GRs heirs is voidb) GR gets reversion c) GR to A for life, then to GR heirs A: Life estate GR: Reversion

1. Rule Against Perpetuities3. No interest is good unless it must vest, if at all, not later than 21 yrs. after some life in being at creation of interest. 3. GR to A, if A discovers cure for common cold. (A has a springing executory interest which is void)3. GR to A if any of As children discover cure for common cold. (A has no living children; GR not adequate measuring life, A not adequate measuring life either)3. Applies to contingent remainders & executory interests 3. Does not apply to vested interests (remainders or future interests of transferor)3. An executory interest following a fee simple determinable or divesting a fee simple vests only when the condition happens and it becomes a possessory estate. 3. Measuring life: Life in being at time of creation of interest, alive or conceived.3. Strikes down contingent interests that might vest too remotely. You must prove that a contingent interest is certain to vest or terminate no later than 21 years after the death of some person alive 5. Definition of vest:0. Contingent remainder must become possessory or become a vested remainder.0. Executory interest must become possessory3. Reforms to RAP:6. Wait-and-See Doctrine: > states have reformed RAP to judge based on actual events; some wait out the relevant lives + 21 years; states following Uniform Rule USRAP wait 90 years then use cy pres to make it vest w/in 90 years.6. Cy Pres Doctrine: Reforms an invalid interests, w/in Rules limitations, to approximate most closely the intention of the creator of the interest. 6. Abolition of Rule: In several states, RAP to interests in trusts has been abolished IV. CONCURENT INTERESTS TTIPTime: interest must be created at the same timeTitle: interest must be created by the same instrument or actInterest: each must hold same proportionate share and shares must be of the same durationPossession: each co-owner must have the right to possess the wholeIf not otherwise stated in the conveyance, it is assumed that all co-owners receive equal shares

Tenancy in Common (TC): Requires: Possession Survivorship: NORight of transfer: 1) each co-owner can transfer his share unilaterally 2) partition is available

Joint Tenancy (JT)Requires: TTIPSurvivorship: YESRight of transfer: 1) each co-owner can transfer his share unilaterally, once share is transferred the joint tenancy is severed 2) partition is available O to A and himself = most places a successful JT has been created; some still require TTIP

Tenancy by the Entirety (TBE) Requires: TTIP (only to married persons) (fewer than half the state recognize)Survivorship: YESRight of Transfer: 1) share can be transferred unilaterally only after termination of the marriage 2) during marriage shares can be transferred between the owners 3) during marriage both spouses must agree to any transfer 4) divorce creates a tenancy in common

A. In the states that do not recognize TBE, a rebuttable presumption exists that a conveyance of a concurrent estate is intended to create a tenancy in commonB. In the states that do recognize TBE, a rebuttable presumption exists that a conveyance of a concurrent estate to a married couple is intended to create a TBE, a rebuttable presumption exists that if they are not married, then the intent is a TC.

First in time, first in right common law: when different interests arise, the first one created has priority over those following

People v. Nogarr 405(Right of survivorship existed before the lien existed and the mortgage was terminated once it transferred via survivorship)Facts: The Appellant Elaine Wilson and Calvert Wilson (now deceased) owned property as joint tenants until the death of Calvert in 1955. Prior to Calverts death, the couple separated in July of 1954, and thereafter, without Elaines knowledge or consent, Calvert executed a promissory note to his parents (Respondents) for $6,440, and then delivered a mortgage to his parents on the property in question.Reasoning: In this jurisdiction the act of mortgaging property by one of the tenants in a joint tenancy is not sufficient to sever the tenancy, and the interest of the mortgagee will terminate if the mortgaging tenant dies before the non-mortgaging tenant. Issue: Does the execution of a mortgage by one joint tenant terminate the joint tenancy?Discussion: Consider the equities present in this case. Elaine was an innocent spouse who had no idea that the property had been mortgaged. The Court seemed to desire a result which would not harm Elaines interest and reward Calvert and his parents for Calverts non-disclosure of the mortgage and promissory note.

RIGHTS AND DUTIES OF CONCURRENT OWNERSA. A cotenant who pays more than his share of a debt secured by mortgage or other lien on the common property, or of interest falling due on such debt, is entitled to reimbursement (contribution) from his cotenants to the extent to which he paid their shares of the indebtedness. (Laura v. Christian)B. A cotenant in possession of concurrently owned property cannot be compelled to pay rent to the other cotenants unless he ousts the other cotenants or prevents them from enteringC. A cotenant who collects more than his proportionate share of rent from third parties can be compelled to account to fellow cotenants for the excess collectedD. A cotenant is usually not liable to share net profits he makes from a business he runs on the property UNLESS the business involves an exploitation of the properties natural resources E. Adverse Possession: In order for the possession by one cotenant to become adverse to another cotenant, there must be a disseizen or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature to impart notice to the cotenant that an adverse possession and disseizen is asserted by the tenant in possession. (Mercer v. Wayman)F. Must oust the other parties and do something to show unequivocal Exceptions to actual notification1) Tenant has no reason to suspect a cotenancy exists2) Tenant makes efforts in good faith to notify3) Where cotenants have actual knowledge that the tenant in possession is claiming adversely to their interests4) In these cases, constructive notice and open and notorious possession

NON-FREEHOLD ESTATES: LANDLORD AND TENANTLEASEHOLD ESTATES A. Leases are a unique combination of contact and property lawB. Types of Tenants: fixed term, periodic, hold-over C. ILLEGAL LEASES 1) Void: if a lease is exclusively for an illegal purpose (violates zoning)2) Void: if the formation of the lease is illegal (usually) Brown v. Southall Realty Co.3) Valid: Lease for some legal and some illegal purpose is enforceable as to its legal purpose4) Valid: A lease that requires each party to perform lawful act is valid and enforceable despite the fact that one of the parties attempts to substitute the performance of an illegal act for performance of a required lawful act. (Unlike Brown v. Southall, if a lessor leases property in violation of a code, and the code does not say explicitly that renting of substandard property is illegal, then the lease is valid and the lessor is only in breach of the lease)

COVENANT OF QUIET ENJOYMENTA. Definition: a promise by LL that the tenants beneficial enjoyment of the premises will not be substantially interfered with by certain parties1) Landlord2) Person or entity, claiming a right through LL3) Person or entity with superior title to LL B. Covenant is implied in every lease, commercial and residentialC. 3 ways to assert breach, usually through actual or constructive eviction D. ACTUAL EVICTIONS 1) denied physical access 1) Tenant is denied physical access to premises; either partial or total2) Remedies: 0. Rent abatement; if tenant is either totally or partially denied access, rent is totally abatement the landlord cannot apportion his wrong3) Damages: 0. Loss of benefit of the bargain0. Foreseeable consequential damages E. CONSTRUCTIVE EVICTIONS 1) Intentional or Neglect, 2) Uninhabitable, 3) Vacate 1) LL or agent thereof substantially interferes with the tenants beneficial enjoyment of the premises but doesnt interfere with actual possession 1) Intentional interference OR Neglects to do something expressly or impliedly promised in the lease that is important to the tenants beneficial enjoyment (on a commercial lease LL has no implied duty to do repairs/maintenance) 2) MUST make the premises UNINHABITABLE or un-useable as judged by reasonable community standards3) Tenant MUST VACATE2) Remedies: 0. Rent abatement3) Damages: right to damages for loss of the benefit of the bargain and lost profits depending upon the circumstances F. OTHER BREACHES1) Jurisdictions are split on whether there must be actual or constructive eviction 2) Many hold that if a tenant has not been evicted then no breach has occurred but some hold that there may be if0. Tenant has been substantially deprived of the beneficial use and enjoyment of the premises and0. Elects not to vacate but to remain in possession0. He may sue for damages or injunction to enjoin the interference

Warranty of inhabitability is implied in a residential lease imposes certain duties on a landlord to maintain the premises in habitable condition Failure to do so may be legal justification for a tenant's defensive acts, such as moving out (even in the middle of a lease), paying less rent, withholding the entire rent until the problem is fixed, making necessary repairs (or hiring someone to make them and deducting the cost from next month's rent).

POSSESSIONIf it is LLs responsibility to secure Tenant from holdovers and tenant cannot take possession, then the tenant can rescind and claim damages (benefit of bargain, foreseeable consequential damages)

1) AMERICAN RULE: Landlord gives the right to possession but not actual, tenant must assert actualPolicy: a party to a bargain, himself without fault, is not responsible for tortious interference by a stranger; after a lessee takes possession; his only cause of action for trespass against the trespasser- there is no substantial difference between a trespass which interrupts possession and one which precludes it. 2) ENGLISH RULE: LL must provide actual possessiona. In some jurisdictions the LLs duty it thought to be the logical consequence of the covenant of quiet enjoyment HOWEVER, a covenant for QE is only a promise that the LL, his agent, or one claiming authority through him, will not substantially interfere. (Hold-overs? No)b. LL implies promise of actual possession in a lease

HOLD-OVER TENANTThe situation when a tenant of real estate continues to occupy the premises without the owner's agreement after the originallease or rental agreementbetween the owner (landlord) and the tenant has expired. The tenant is responsible for payment of the monthly rental at the existing rate and terms, which the landlord may accept without admitting the legality of the occupancy. A holdover tenant is subject to a notice to quit (get out) and, if he/she does not leave, to a lawsuit for unlawful detainer.

Fixture: any physical property that is permanently attached orfixedtoreal propertywhich once removed will cause permanent damage to the real propertyTrade fixture:a piece of equipment on or attached tothe real estatewhich is used in a trade or business. Trade fixtures differ from other fixtures in that they may be removed from the real estate (even if attached) at the end of the tenancy of the business, while ordinary fixtures attached to the real estate become part of the real estate. The business tenant must compensate the owner for any damages due to removal of trade fixtures or repair such damage. (MUST: remove without damage and before the lease ends.)

DUTIES OF LANDLORDSPersonal Injury: Majority: no liability to tenant or invitee of tenant unless 1 Hidden dangers of which LL was aware but did not disclose2 LL unreasonable maintenance of common and public areas3 Unreasonably defective repairs done by LL4 Defects LL promised to repair but did not disclose Minority: LL owes a general duty through due care to avoid foreseeable risks if harm to a tenant or an invitee of a tenant

Third Parties: Traditionally: no liability for injuries due to the criminal conduct of othersProgressive: Landlords owe a general duty of reasonable care to their tenants, but the common law does not impose a duty on private citizens to protect others from criminal attacks by third parties unless perhaps he has done or has filed to do something which has foreseeably facilitated the crime. a. Where LL has negligently failed to meet an independent duty to maintain the premises and that failure facilitated the crimeb. When an employee of LL negligently fails to protect the tenantc. When LL fails to meet a contractual obligation, such as the obligation to fix a door

NONPAYMENT OF RENT1. Non-payment is grounds for eviction; however non-payment and late payment are not equivocal2. A lessor who has knowledge of a tenants breach may waive right to terminate the lease if he acts in a way that affirms the leases continued existence

RETALITORY EVICTIONS1) The act of a LL in ejecting or attempting to eject a tenant from the rented premises, because of the tenant'scomplaints or activities with which the landlord is not in accord.2) Is a substantive defense and affirmativecause of actionthat can be used by atenantagainst LL3) Month to month LLs can evict for any reason if they give proper notice, however conduct in pursuit of a habitable dwelling is protected 4) Does not apply to fix term leases, generally if there was an attempt at an eviction in a fixed term, it would simply be considered a breach of the lease. However, if an LL refuses to renew, that is not an eviction and the defense would not apply5) LL may have a legitimate reason for eviction; who has the burden?

MITIGATION/ABANDONMENT 1. NOT ALL STATES REQUIRE LL MITIGATION (working off a property theory of land conveyance rather than a contract) USUALLY residential LL need to mitigate; commercial context, likely not. 2. What if LL re-lets (mitigates) in a state where mitigation is not necessary? He has evicted T interfering with rights of possession, releasing the T from the lease. 3. ABANDONMENT? Sometimes construed as an offer to terminate the lease early which the LL may accept, the act of re-letting would indicate acceptance and release of T form lease.

ACCELERATION CLAUSE Breach on an installment payment accelerate all subsequent installments If LL does not have that clause, then they cannot sue until you are in breach for each installment month to month How to acceleration clauses work in lease? LL gets the property and the rent while T is evicted? Yes HOWEVER if/when he re-lets (mitigates, which he is required to do) T gets a refund.

WASTE BY TENANT T in LL/T context can be charged with waste for certain misconduct. Waste (permissive/voluntary) is misconduct that0. Causes damages to property beyond normal wear and tear0. Materially reduces the value of the rental premises Voluntary: T intentionally damages property Permissive: T fails to meet common law duty to make minor repairs necessary to keep a rental space wind and water tight (How do we reconcile that with LL responsibility under warranty of inhabitability? Seems to be reduced to small repairs or emergency situations) Remedies: Damages or injunction, not termination of the lease

Laura v. Christian 420 Facts: Laura, owner as tenant in common of three-fourths of a property called Fireside Lodge, paid money to preventforeclosureon the property by the mortgagee, and Christian, owner as tenant in common of one-fourth of the Fireside Lodge, contributed nothing to the payment.Reasoning: As a general rule a cotenant who pays more than his share of an indebtedness secured bymortgageor other lien is entitled to reimbursement or contribution from the other cotenants to the extent to which he paid their share of the debt.Holding: Yes, Judgment reversed with instructions to enter a judgment quieting title to three-fourths of the Fireside Lodge in Laura and establishing a one-fourth interest in Christian, subject to a lien securing repayment of his pro-rata share of the indebtedness paid by Laura to the mortgagee, together with interest.The general rule is stated as follows, As a general proposition, a cotenant who pays more than his share of a debt secured by mortgage or other lien on the common property, or of interest falling due on such debt, is entitled to reimbursement (contribution) from his cotenants to the extent to which he paid their shares of the indebtedness. In this case the Court was faced with a simple matter of requiring contribution from Christian in an amount equal to one-fourth of the monies expended by Laura to his benefit.The Court noted that the general rule was also that the payment of debt on a property by a cotenant in a tenancy in common inures to the benefit of the non-paying cotenant, who may then exercise an option to contribute their share of the payment so made. The option to pay ones share must be exercised within a reasonable time. In this case the time was reasonable even though Christian showed no interest in paying his share until it became clear that it was to his benefit to do so.The Court noted that its prior decisions precluded the imposition of a constructive trust in a suit to quiet title. Thus, the payment of Laura made in behalf of Christian does not create a constructive trust in favor of Laura such that Christians one-fourth interest may be quieted in Laura.Discussion: This case is easily understood and the Court provides clear rules for the contribution required by cotenants when one shoulders the burden of debt. A constructive trust is a concept of equity which is also sometimes called a purchase money resulting trust, and is operable to vest title to property in a payor where one pays money for anothers benefit and is not timely repaid.

Mercer v. Wayman 428Facts: This case involved a dispute between the Plaintiffs, the widow and children of Fred Mercer, deceased (P) and the Ds, surviving sons of Lora Wayman, deceased, and the widow and daughter of Verne Wayman, deceased (D), to set aside oil and gas leases by the Defendants and to have the Plaintiffs declared the sole owners of the 40 acre tract in question.Reasoning: The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter how long a period, cannot be set up as a bar against the cotenants. Issue: Are the Defendantsclaimsbarred by the statute of limitations?Holding: No. Reversed. In order for the possession by one cotenant to become adverse to another cotenant, there must be a disseizen or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature to impart notice to the cotenant that an adverse possession and disseizen is asserted by the tenant in possession.The deed to Fred Mercer and wife was ineffective to convey the Defendants, then minors, interests in the land. Thus, such deed did not constitute color of title and the seven-year statute of limitations (tax title) was inapplicable.The Plaintiffs, although in possession for thirty-four years, never made any overt act, which would serve as notice to the cotenants that they were claiming adversely to them. The Plaintiffs have failed to meet their burden of proof.

Brown v. Southall Realty Co. 449 Facts: Appellee, landlord, brought an action for possession against the Appellant, Brown, for rent in arrears of $230. Brown contended that no rent was due under the lease because the lease was an illegal contract, where landlord, with knowledge of housing regulations violations, entered into the lease with Brown stating that the premises were habitable in spite of the violations.Held: no valid lease because there was a violation, it confers no rights to the landlordNotes: The provision in this specific case makes it illegal to rent a substandardly maintained area in the first place, more often than not, rules say that property must be maintained in such a way, but does not purport to say that renting a property substandardly maintained is illegal (though the lessee could seek to enforce the code and the lessor would be in breach; Court took into account legislative intent

Jancik v. Department of Housing and Urban Development 459 (Advertising and screening is unlawful when the implication is discrimination against a potential renter based no sex, religion, marital status, race, etc.)Facts: Jancik, Petitioner, owns an apartment building, and ran an ad in a newspaper which was claimed by the Leadership Council for Metropolitan Open Communities to violate provisions of the Fair Housing Act (FHA).Issues: Does Janciks ad violate the FHA provisions such that the words mature person preferred indicate a non-preference of a particular protected group?Holding: Yes, petition forreviewdenied.The test for determining whether an ad indicates a preference or non-preference of a particular protected group under theFHAis that of the ordinary reader. The test is stated as the statute is violated if an ad for housing suggests to an ordinary reader that a particular protected group is preferred or dispreferred for the housing in question. The Court holds that this can be shown by subjective evidence of the intent of the person who places the ad.Discussion: In this case, the court applied an objective test focused on the content of the ad and looked to the conduct of Jancik in his conversations to provide the basis for their decision.

Adrian v. Rabinowitz 486Facts: Defendant Rabinowitz leased store premises to Plaintiff Adrian to commence on a date certain, and after thepayment of the first months rent by Plaintiff, the premises were not available due to a hold over tenant.Issue: Did the lease contract impose on the lessor a duty of putting the tenant in actual and legal possession of the premises at the beginning of the lease term?Holding: Yes, because the express covenant for quiet enjoyment is generally interpreted to secure the lessee from acts of hindrance performed by the lessor or his agents, the express covenant does not protect the lessee from interference by strangers with his possession. Therefore, for Plaintiff to prevail the duty must be implied.The Court considers the question of whether the lessor is under a duty to put the premises in actual and legal possession of the lessee at the beginning of the term and finds that there is such a duty. The Court finds favor with the English rule which states that when the term oflease is set to commence in the future, there is an implied undertaking by the lessor that the premises shall be open to the lessees entry, legally and actually, when the time for possession arrives. The Court finds that other American jurisdictions impose such a duty.The actions of the lessor (Defendant) in evicting the hold over tenant is evidence that the lessor was acting as if there were a duty to deliver actual and legal possession to the Plaintiff lessee at the commencement of the lease.The Court found that the lower court made an error with regard to the computation of damages. The lower court found that the Plaintiff would have disposed of at least $2,800 worth of seasonal merchandise during the time the premises were unavailable, and that Plaintiff was compelled to sell the merchandise at 25% below cost. The Court found this formulation to be far too speculative and that the proper formulation of damages should be the difference between the actual rental value and rent reserved for the period of the deprivation of possession.The Court ruled that parol evidence could be adduced to prove that additional damages should be awarded to Plaintiff as the result of the breach, but that based on the evidence in the record, Plaintiff did not make a showing that would justify theapplicationof such evidence to determine damages. Further, that the business was a new venture which failed prior to the ending of the first rent term, and that shows the uncertainty of measuring damages for loss of the opportunity to sell seasonal goods.Note:Hold over tenants can be a great problem for landlords. It makes sense to create a duty forthe landlord to promptly deliver possession of the premises because the prospective lessee has no direct legal rights against a hold-over tenant, while the landlord does have such rights

Blackett v. OlanoffFacts: A landlord rented property to a tenant running a lounge in an area that was residential. The lease required the noise not disturb others, but when it did,the landlorddid not correct the situation.Issue: When the acts of one tenant prevent the other tenants from enjoying their premises, will the landlord be liable when the lease prohibits the tenant from disturbing others?Holding: Yes, occasionally, a landlord has not intended to violate a tenants rights, but a breach of the landlords covenant of quiet enjoyment still occurs which flowed as the natural and probable consequence of the landlords actions, inactions, or what he permitted to be done. The landlords conduct, not his intentions, is controlling. Plaintiffs had the ability and right to control the noise, which caused Defendants to vacate theirapartmentsbecause of the provision in the lease that regulated noise. Even though Plaintiffs only knew that there would be a potential noise problem at the time they gave the lease, experience demonstrated that an acceptable music level at a lounge is unacceptable for residential tenants. Because the disturbing condition was the natural and probable consequence of the Plaintiffs permitting the lounge to operate in that location, and since they could control the actions of the lounge, they should not be able to collect rent for the residential premises that were not reasonably habitable. Tenants in these situations should be able to bring a claim againstthe landlord.Note:The covenant of quiet enjoyment, which is implied in every landlord-tenant relationship, holds that the landlord promises not to disturb the tenants quiet enjoyment of his premises. As seen in this case, the landlord will be liable when the disturbance comes from another tenant.

Commonweallth Building Corp. v. Hirshfield 474F: D rented an apartment from P and was intending to vacate the premises at the end of the lease period, but was delayed until the following day in vacating the premises. P elected, under an ancient rule, to treat the De as a hold over tenant for another year (the lease period) and to require rent.I: May the landlord elect to treat a hold-over tenant under these circumstances such that the landlord may assume that the lease period should be extended by another year?H: No. Reversed with judgment for D, A tenant who holds over after the expiration of his term may, at the election ofthe landlord, be held to be either a trespasser or tenant for another similar term. However, the holding over by the tenant must be voluntary. The Court found that the cases involving hold over tenants proceed on one of two theories: 1. The voluntary action of the tenant allows the landlord to assume an intention on the tenants part to create a second tenancy, or 2. The action of the tenant is such that the court will hold the tenant liable for a second lease on the principle of quasi contract. The Court held that the P here should not be allowed to recover under either theory.D was vacating the property in good faith and with reasonable speed. There was no evidence to support a theory that the actions of D in holding over should give rise to Ps assumption that D was voluntarily holding over. D chose to not move in the middle of the night of the 30th of September, but instead chose to wait until morning. Nothing indicated a desire to renew the lease for another year.D cannot be held liable on a theory of quasi contract because justice required an absolute presumption of contract for another term. The lease itself provided for such an occurrence as holding over, and under the terms of the lease, P is entitled to collect double rent for the period of hold over. This agreement is reasonable. Thus, the only power that P had in case of hold-over was to charge D double rent for whatever time D held over.Notes: whenever there is a conflict between some common law rule and an express provision in a contract which is not in violation of the law, the courts will generally find favor with the expressed agreement of the parties, such as in this case.

Richard Barton Enterprises v. Tsern (488)F: Plaintiff Richard Barton Enterprises (Barton) entered into a lease for commercial space in an office building with Defendant Tsern. The lease and earnest money receipt incorporated into the lease provided that rent was to be $3,000 per month and that the premises should be made available on December 1, 1991, and that lessor was required to fix aleaky roofand repair the freight elevator to good working order. The elevator was sporadically repaired and not always up to code for the entirety of the lease.I: Does an implied warranty of suitability for a particular purpose extend to commercial leases such as this one, which makes the obligation to pay rent dependent on the lessors obligation to maintain the premises?H: Yes. Affirmed [however, the trial court incorrectly computed damages].Traditionally, lease covenants were independent of the lessees obligation to pay rent. To ameliorate this rule, the courts developed the concept of constructive eviction, but under that concept the lessee has to quit the premises prior to withholding rent. The Court notes that the more modern view is to treat the landlord-tenant relationship under concepts from contract and tort law.The implied contract of habitability applicable to residential leases is held to extend to commercial leases as well in the form of an implied warranty of suitableness for a particular purpose. The lessees obligation to pay rent is dependent on the lessors performance of essential covenants.Only a significant breach of a covenant by the lessor can give rise to the withholding of rent by the lessee. The Court held that the covenants of the Defendant were significant inducements to the Plaintiff to rent the property, and that the working elevator was vital to Plaintiffsbusiness.The lessee is entitled to abate rent by an amount equal to the reduced value of the premises due to the lessors breach. The trial court was wrong to award damages for the cost of repairing the elevator.

Handler v. Horns (512) (Trade fixtures may be removed so long as doing so does not case permanent damage) F: This case involves a dispute as to whether certain fixtures placed by a tenant on a leased premises may be removed, or if the fixtures become the property ofthe landlord. Meat packing plant. The tenant was given the right to remove any and all trade fixtures that belong to tenant or which had been installed by tenant except those that are so fixed as to become part of the building such that their removal could not be accomplished without causing material damage to the premises. When the term of this lease expired the parties went on year to year. Fred died in 1945 and left the business, including any fixtures, to his son, Defendant Henry Horns. Hazel Handler, Plaintiff, who owns an undivided one-third of the building sued for partition. Plaintiff claimsthat all the improvements made by Fred to the building became part of the building and may not be removed from the building. The case was referred to a special master who reported that the premises could not be partitioned but should be sold as one parcel and that the fixtures placed by Defendant had become part of the building. The Vice Chancellor found that the tenant intended to make the fixtures become partof the real estate and that it constituted one single business entity. Defendant appealed.I: May the tenant in possession remove the trade fixtures?H: Yes. So long as the removal does not cause damageto the premises. Case remanded for a determination of what may be removed.The ancient rule was that whatever is fixed to the realty becomes a part of the realty and may not be removed. In order to encourage trade and industry, this ancient rule has been subjected to exceptions for fixtures placed in premises for businesspurposes. The public policy is such that the widest possible latitude is given to tenants in commercial leases.The general rule in modern law is that trade fixtures may be removed by the tenant so long as the removal does not case material damage to the premises. Trade fixtures are defined as any article annexed to the property for the purpose of aiding the business conducted by the tenant.In the original lease the tenant was only required to deliver up those fixtures already in place at the commencement of the lease. The provision did not extend to those fixture placed after the lease began. The second lease provides that the trade fixtures placed by tenant may be removed so long as the removal does not materially damage the premises.Because there is expert testimony that the fixtures in question could be removed without causing material injury to the property, the case should be remanded to exclude from the sale of the property those fixtures which may be removed without causing material damage to the premises.

Walls v. Oxford Management 517(Duty of LL to tenants to protect against third parties)Facts: On December 5, 1988, P Walls was sexually assaulted in her vehicle parked on the premises of Bay Ridge Apartment Complex. The Ds in this case are the owners of the apartment complex and the management of the complex. During the two years prior to the assault on P there were eleven auto thefts, three attempted auto thefts, and thirty-one incidents of criminal mischief/ theft. No sexual assaults were reported. P brought an action in federal court alleging that Ds had a duty to hire competent management, provide reasonable security, a duty to warn residents of lack of security, and a duty to warn residents of the numerous criminal activities which had occurred. The P alleges that Ds breached the duties listed and that such breach was the proximate cause of her injuries.Issues: 1) Does the landlord have a duty to secure tenants against criminal attack? 2) Is the implied warranty of habitability breached bycriminal actsof third persons?H: No. Landlords owe a general duty of reasonable care to their tenants, but the common law does not impose a duty on private citizens to protect others from criminal attacks by third parties. Thus, the Court will not place such a duty on landlords, unless the conduct of the parties merits a finding that one of the exceptions to the general rule is implicated.The exceptions of the general rule against holding private citizens liable from attacks by third parties fall into four categories: 1. When a special relationship, such as innkeeper-guest or carrier-passenger, exists. This type of relationship is not present in a landlord-tenant relationship.2. When a condition brought about by the defendant is a special temptation to foreseeable criminal conduct. This is how most cases holding landlords liable are decided. 3. When there is an overriding foreseeability of criminal attack. This is not adopted here. 4. Under the general tort principle that one who assumes a duty thereafter must act with reasonable care.The Court held that while landlords have no general duty to protect tenants from criminal attack, such a duty may arise when the landlord has created or is responsible for a known defective condition on the premises which creates a foreseeable risk of criminal conduct. A landlord who undertakes, gratuitously or under contract, to provide security for anapartment complexmust act thereafter with reasonable care. Unless the conduct of the landlord fits into one of those exceptions, the landlord will not be held liable for criminal attack on residents by third persons.The implied warranty of habitability in residential lease agreements protects tenants against structural defects, but does not require landlords to take affirmative measures to provide security against criminal attack. This does not limit a recovery shouldthe landlordviolate an express covenant in the lease or through an attack through a violation of the housing code.

Foundation Development Corp. v. Loehmanns (525)(Material and non-material breaches) F: In this case tenant ina commercial leasefailed to pay an amount due under the lease (late by 2 days), the lessor sought to terminate the lease due to the breach, which D contended was a trivial breach. (LL really just was looking for a way to evict the tenants b/c they were locked into a 30 yr. lease w/ no rent increase)I: Does the trivial breach of lessee justify forfeiture of the premises and cancellation of the lease?H: No. Although there is a statute in this jurisdiction which confers a right to lessor to terminate a commercial lease for a breach and take possession, the Court will not read the statute so broadly as to state that any breach, at any time is sufficient to confer such a right. The Court found that the legislature could not have meant to confer a right to landlord to terminate a commercial lease under any and all circumstances, no matter how trivial.The Court finds that the breach (a late payment) was very insignificant and considered the question of what would happen in case of a harsh rule of forfeiture for any breach where the check was late by mere minutes. The Court found that the results under so harsh a rule would be ridiculous.

Edwards v. Habib (531)(Retaliatory Eviction) F: A tenant reported sanitary code violations on leased premises and thereafter the landlord moved to evict the tenant. Appellant Edwards rented housing property from Appellee Habib on a month to month basis in March 1965. Edwards then complained to the Department of Licenses and Inspections of sanitary code violations in the leased premises, which upon inspection uncovered 40 violations and ordered the landlord to correct them. Then, the landlord gave Edwards a statutory thirty day notice to vacate and obtained a default judgment for possession of the premises.I: Does the landlord have an absolute right under these circumstances to terminate the month to month tenancy and evict the tenant?H: No. The promulgation of the housing code by the District of Columbia Commissioners under authority from Congress implies a change in the relative rights as between landlords and tenants.Proof of retaliatory motive is a defense to any action of eviction where the alleged retaliation occurs due to the tenants reporting of housing code violations.Edwards challenged the constitutionality of the statute under whichthe landlord may elect to terminate a month to month tenancy upon a thirty day notice to quit, where judicial enforcement of such statute would render state aid to the landlord in depriving tenant of a property right, namely, the tenants right to report housing code violations. The Court found that this issue need not be decided. Instead, the Court would allow the tenant to present proof in an eviction proceeding of a retaliatory motive by landlord in the instituting of the eviction suit.Because the Court has a duty, as a court of equity, to consider the social implications of its decisions, the Court found that the public policy of protecting tenants in slum housing from inequalities resulting from their social conditions must be considered in rendering this decision.The Court found that the balance between the statutes authorizing the landlord to evict a month to month tenant after thirty day notice and the housing code statutes can only be struck by holding the eviction statutes inapplicable where the courts aid is sought to effect an eviction in retaliation for reporting housing code violations.

Homeland, Inc. (537)F: D Homeland, leased office space from Schlesinger P. Homeland abandoned the property after 2 years, premises were subsequently re-let to another tenant for a higher rent and longer term (Sebastian 3yrs), who also defaulted. P attempts to re-let again, create a third lease. P brings claim for the 5 yr. lease (minus rent properly paid) D claims this was not merely mitigation, this second lease was longer and for different terms therefore not mitigation, you are creating an entirely new lease (court not buying it) I: When a tenant toa commercial leaseabandons the premises prior to the expiration of the lease and the lessor re-lets the premises for a longer term than the original lease and for more rent, does such re-letting as a matter of law terminate the original lease, freeing the original tenant from any claim for damages which occurred after the re-letting?H: No. Following abandonment landlordhas a duty to mitigate damages by seeking a suitable tenant to re-let the premises. When the tenant abandons the leased property the tenant surrenders his estate in the property, but is still liable for damages from the breach of contract.The tenant who breached remains liable for the difference between the agreed price of the rent and the fair rental value of the premises, which is an amount the law presumes the lessor can obtain with reasonable efforts to re-let the premises.The mere act of re-letting for a longer or shorter term does not, without more, bar the lessors claim for damages from the breach. The lessor is not required to mitigate damages by re-letting the premises at less than the fair rental value.Evidence of the lessors reasonable efforts to re-let the premises in question are found when lessor stated that at all times he tried to re-let the property, and that there was asurplusof office space in the Portland area during the relevant portion of time. Because the re-letting did not cancel the original lease, the receiver for Homeland is liable for $26,460, which is the amount for the rent remaining in the original term during which time the building was vacant.

If a T abandons what are remedies for the LL?

Property ReviewWednesday 12 and Friday 14 Office HoursExam StructureMid-term 40% 18 MC Questions (Estates and Future Interests) 2 Essays Exam Tips Assume audience has very limited knowledge; be thorough in explanations Write and advocate for both sides; be predictive, what will P/D attempt to argue?

Life Estates

1) A to C, but if C fails to reach 21, then to A (C19)C: FSSCS; A: ROR

2) A to B for life, then to C, but if C fails to reach 21, then to AB: LE C: vested remainder subject to a complete divestment (if C gets the land at 20, but the dies before 21, land to A (ROR); if C reaches 21 then C gets a FSA)

3) A to B for life, then to C, if C is at least 21 when B dies, else to A. (age goes from being a condition sub to condition prec. (2))B: LE C: contingent remainder in FSA A: reversions always follow contingent remainders

4) A to B for life if C is at least 21 when B dies, else to D. B: LE C: contingent remainder in FSA D: alternative contingent remainder A: reversion? We recognize the rule of destructibility; B may abandon the LE before dying