Property Law

5 sticks in the bundle of property rights

Right to exclude others

Right to possess

Right to dispose/alienate

Right to manage (use)

Right to receive income

6 Justifications for Protecting Private Property

Occupation

Labor

Contract

Natural Rights

Social Utility

Human Dignity

When nominal damages are awarded for an intentional trespass to land…

punitive damages may, in the discretion of the jury, be awarded

Ownership of real property does not include the right to…

bar access to governmental services available to migrant workers

Three-prong test for determining what public use gives rise to a constitutional obligation to protect free speech in the minority of jurisdictions:

1) normal use of the property

2) extent and nature of public’s invitation to use it

3) purpose of the expressional activity in relation to private and public use

Quiet title actions

Sue the land and the court then decides who owns the land.

If the true owner has not ejected an interloper within the time allotted for an action in ejectment, and all other elements of adverse possession have been established, then

hostility will be implied, regardless of the subjective state of mind of the trespassers.

To claim adverse possession, one must have this state of mind

Must believe in good faith that they have the right to do so.

Trespass cannot…

ripen into prescriptive title

The hostility/claim of right element of adverse possession requires only

that the claimant treat the land as his own against the world throughout the statutory period.

To establish a claim of adverse possession, there must be possession that is:

1) actual

2) hostile

3) open and notorious

4) exclusive

5) continuous

6) under a claim of right

7) held for the statutory period

The doctrine of custom allows the general public to acquire rights over private property. The criteria are:

1) the use be ancient

2) the right has been exercised without interruption

3) that it be peaceable and free from dispute

4) that it be reasonable

5) that it is certain

6) that it is obligatory and not left to the option of particular individuals

7) that it be consistent with and not repugnant to other customs

The four elements of the doctrine of agreed boundaries are:

1) uncertainty about the true location of the boundary

2) agreement upon a fence, or some natural boundary, that will delineate the boundary

3) mutual acquiescence in the location of the line, manifested by each neighbor’s possession of the land right up tot he agreed upon boundary

4) the acquiescence must exist for a prescribed period of time, typically the same time period of adverse possession

For adverse possession, the statute of limitations does not begin to run until…

the injured party discovers, or with reasonable diligence might have discovered, the facts constituting the injury and cause of action.

Tacking is

tying into the previous owner’s use of the property to get to the statutory period requirement for adverse possession.

To use tacking, the parties must…

be in privity. There needs to be a substantive legal relationship between the two parties.

Tolling…

stops the statute of limitations.

To use tolling…

the thing that would trigger the tolling has to exist when the statute of limitations would begin

The calculation of the statute of limitations is based on…

when the adverse possessor shows up, not anything the owner does

A leasehold estate is…

a possessory interest that normally gives the tenant the right to exclusive possession

A lease is…

a possessory interest in land

A license is…

something that authorizes the licensee to use the land in possession of another. It arises from the consent of the owner of the possessory interest.

Four characteristics of a lease:

1) Possessory interest

2) Exclusive possession

3) Description of the demised property

4) Usually assignable

Five characteristics of a license:

1) Permissible use

2) No interest in the property

3) Typically short term

4) Not necessarily fixed location

5) Not assignable

Leases are (two things)…

contracts and transfers of property rights.

Licenses are…

only contracts

In the making of a lease, it is essential

that the instrument in question show an intention to establish the relationship of landlord and tenant, even if particular legal terminology is not used.

A lease must include…

a definite description of the property leased and an agreement for rental to be paid at particular times during the specified term.

A license is… (3 characteristics)

1) personal

2) revocable

3) unassignable

permission to do one or more acts on the land of another without possessing any interest therein

When there is no language in an agreement that would denote it as a lease, and there is specific language that denotes it as a license instead,

the Court will likely consider it a license, so long as few, if any, characteristics of a lease are met

Calling payment rent is…

conclusory, because rent is key to leases

Four types of tenancies in US law (times)

1) Tenancy for years

2) Periodic tenancy

3) Tenancy at sufferance

4) Tenancy at will

A tenancy for years is…

any agreement for you to be on the property beyond one periodic payment.

A tenancy for years doesn’t…

actually have to be for over a year

A tenancy for years can be ended by …

the contract ending. No notice is needed.

If you don’t leave a tenancy for years at the end of the period…

it converts to a periodic tenancy

A tenancy for years can convert by…

the mere payment of rent

A periodic tenancy is…

rent for successive periods until terminated. It’s just one period that keeps going.

Periods are determined…

by how frequently you pay rent, or the rental period.

An example of a periodic tenancy is

a month-to-month lease where the tenant takes possession with no ultimate duration specified and a reservation by payment occurs.

Which gives you more rights: a tenancy for years or a periodic tenancy?

A tenancy for years

A periodic tenancy can be ended

at the end of a period

A tenancy at sufferance is…

a new contract or periodic tenancy

A tenancy at sufferance is what kind of idea

a holdover idea

If you’re in a tenancy at sufferance, then

you’re legally there and not a trespasser, but there’s no guarantee how long you’ll stay

When you have a tenancy at sufferance, you…

had a contract originally, so we know what the relationship initially was

A tenancy at will means…

we don’t know anything about your relationship with the land, but we know that you’re not a trespasser

A tenancy at will…

evaporates almost immediately because a relationship is pretty much immediately figured out, along with the rights associated with it.

The difference between a tenancy at will and a tenancy at sufferance is…

that the tenancy at will is a new contract, while tenancy at sufferance is a holdover from a previous contract

The covenant of quiet enjoyment in leases is an…

implied covenant, not an express one.

The two time periods for quiet enjoyment in leases are…

1) At the beginning. Some states require that the landlord give actual physical possession at the beginning of a lease, while others say that the landlord only has to give you the right to possession.

2) During the term

What is dependent upon the covenant of quiet enjoyment?

Your duty to pay rent, at least in theory

What can you not do with the covenant of quiet enjoyment?

Completely waive it. If you do, it’s not a lease.

What are the three types of eviction?

1) Total actual eviction

2) Partial actual eviction

3) Constructive eviction

A total actual eviction is…

something like getting locked out of your apartment by the landlord. You do not have to pay rent.

A partial actual eviction is…

when the landlord takes part of the property you pay for away from you. You do not have to pay rent.

A constructive eviction is…

when the landlord deprives the tenant of enjoyment or beneficial use of the property to a degree that is tantamount to actual physical dispossession. If you still use the property, then it’s not constructive eviction.

Many express provisions in leases are…

de minimis, and won’t allow you to claim that no rent is due. They’re typically independent clauses.

The implied warranty of habitability is…

implied in all leases and is the bare minimum.

What the implied warranty of habitability requires is…

dependent on jurisdiction

To be able to repair and deduct from your rent, the thing you’re repairing must be…

a vital facility.

To claim repair and deduct, you must…

give the landlord notice and adequate time to accomplish such repair and replacements.

Included in the implied warranty of habitability is…

the right to have your property in minimal living conditions. Vital facilities have to be functional and viable. It has to be habitable, but only barely so.

Landlords have an obligation to… (one thing)

repair vital facilities

One remedy for the breach of implied warranty of habitability is…

percentage diminution, a decrease in the amount of rent paid based on how much of the property was uninhabitable.

Commercial property does not…

have an implied warranty of habitability in the lease. There may be an implied warranty of suitability, but this is a case-by-case basis.

You can never…

waive the implied warranty of habitability.

The four characteristics of an assignment of a lease:

1) Transfer of the full remaining term of the lease

2) Rent is paid directly to the landlord

3) The landlord and assigned tenant have a direct relationship with one another

4) The amount of rent due is the same rent as listed in the original lease.

The four characteristics of a sublease:

1) Transfer of less than the full remaining term of the lease, or the transfer of the full term with a right of re-entry by the original tenant.

2) No direct relationship between the landlord and second tenant

3) The amount of rent is determined by the sublease and may be higher than the original amount of rent

4) Tenant 1 acts as the landlord in the relationship

Privity is…

a legally cognizable relationship between two parties

A sublessor has privity with…

the first tenant, not the landlord.

An assignee has privity of…

estate with the landlord, but not privity of contract.

The landlord has 4 duties under a lease:

1) to provide the tenant with the legal right to possession

2) to not interfere with the tenant’s physical possession

3) to make the possession actually available to the tenant, in most jurisdictions.

4) to comply with all express covenants in the lease.

The intention of the parties should govern in determining whether an instrument is…

an assignment or sublease.

In a sublease, the relationship between…

the original lessee and the sublessee is that of landlord and tenant, and the sublessee incurs no liability directly to the original lessor for payment of rent.

A sublessee’s fate must…

rise and fall with that of the original lessee with regard to the property

Five reasonable bases for denying consent for transfer of property rights under a lease:

1) financial ability to pay rent

2) suitability for the premises

3) legality of proposed use

4) the need for alteration of the premises

5) nature of the occupancy

In New York, landlords can…

withhold consent for transfer of property rights under the lease for whatever reason they want

If a lease is silent as to the transfer of interest, then the lessee…

can assign or sublease as much as they want based on the concept of free alienability of property

If a lease allows transfer of interest “upon consent,” there are two views:

1) Consent must be granted unless there is a reasonable basis to withhold consent

2) Consent can be withheld for any reason or no reason at all

What is a tenant breach?

1) When the tenant wrongfully vacates the premises, causing the landlord to lose rent.

2) When a tenant fails to pay rent

After breach by the tenant, a landlord can…

re-enter the property

Legally, when a landlord re-enters the property, that is an…

acceptance of surrender.

An acceptance of surrender can be…

implied or express. Re-entrance of property is an implication of acceptance of surrender.

If a tenant vacates the property and the landlord does not accept surrender, they can still…

re-enter the property and argue that they’re attempting to mitigate or re-lease the property on the tenant’s account and for the tenant’s benefit.

A landlord can re-enter an abandoned property, and…

lease it to a new person, and still sue based on the original lease both for the original tenant’s breach and for any possible new tenant breach as well, as long as they haven’t accepted the surrender

Mitigation is…

an obligation of the landlord to take steps to re-let the property. It is only an obligation in real estate settings in some states

Landlords can only sue for damages…

up to the point when they begin litigation against the tenant

Anticipatory breach can…

tell you the total rent that’s owed, and then the landlord can sue for the total rent for the period of breach minus the amount of money that they could probably have mitigated.

Retained jurisdiction is when the court….

chooses to keep the case open for the lease term so that the landlord can keep coming back for accrued damages.

In tenant breach cases, the Court has three options:

1) Follow full contract theory and allow the anticipatory repudiation/breach damages

2) Retain jurisdiction, allowing the landlord to come back again and again as damages accrue

3) Require the landlord to bring new lawsuits each time, only allowing them to sue for what they’re owed

If a landlord fails to use reasonable diligence in their mitigation, then…

their recovery as against the tenant will be limited to the difference between what he would have received had the lease agreement been performed, and the fair market value of what he could have received had he used reasonable diligence to mitigate

In mitigation cases, the tenant…

has the burden of proof in proving that the landlord failed to use reasonable diligence.

Absent a supervening statutory proscription, a landlord is free…

to do what he wishes with his property, and to rent or not to rent to any given person at his whim

Interests in land which are not estates in land:

1) Mortgage

2) Easements

An estate is…

an interest in land that 1) is or may become possessory and 2) is ownership measured in terms of duration

A fee is…

an inheritable interest in land, constituting maximum legal ownership

A fee simple is…

an interest in land that, being the broadest property interest allowed by law, endures until the current owner dies without heirs

The four types of concurrent estates are:

1) A tenancy in common

2) A joint tenancy

3) A tenancy by the entirety

4) Community property

A tenancy in common has three characteristics:

1) It is the default/preferred form of ownership

2) Each tenant has an equal share, unless otherwise stated

3) The interest passes along according to the owner’s will or intestate succession