PROPERTY

What is property?

the relationship of people to things

What does property include?

Several rights including: ownership, possession, use, sell, transfer, improve, future/reversionary

What is a leasehold?

A conveyance of property and a contract

What is a tenancy for a term of years?

A lease for a particular period of time that automatically ends (without notice) at the end of the period.

What must be known for a tenancy for a term of years?

The definite ending date at the time the lease is entered into

Can a tenancy for a term of years end earlier?

Yes, if the tenant defaults

What is a tenancy for term of years determinable?

A lease for a particular period of time that could terminate earlier.

What is important about a tenancy for term of years determinable?

It is usually not for residential leases, as many jurisdictions have a minimum for residential.

What is a periodic tenancy?

A lease for successive periods of time of the same duration that automatically renews unless notice of termination is given.

What does a periodic tenancy require to terminate?

Either party to give notice

How much notice must be given for a periodic tenancy?

If less than 1 year, it must be equivalent to the period but not more than 6 months.

How is a periodic tenancy created?

Can be created in the lease itself but is sometimes created as an operation of law at the end of a tenancy for a term of years if the tenant remains in possession

How do many states modify the notice required for periodic tenancy?

They often require 30 days notice.

What is the traditional rule for notice for periodic tenancy?

Notice must be proper (for the right duration) or is otherwise completely ineffective.

What is the modern rule for notice for periodic tenancy?

Notice doesn’t go into effect until at least 30 days has elapsed, and the tenancy has to end at the end of a month.

What is a tenancy at will?

A lease at the will of either or both parties; very uncommon.

What is the traditional rule for tenancies at will?

No notice is required to terminate; the death of either party or assignment by tenant terminates the tenancy; if lease is at the will of one party, it is automatically at the will of the other.

What is the modern rule for tenancies at will?

Most jurisdictions require at least 30 days notice by either party to terminate; the lease is interpreted as it’s written.

What is a tenancy at sufferance?

The tenant holds over and remains in possession after a lease has ended.

What is the holdover doctrine?

The landlord can evict or bind the holdover tenant to a new periodic tenancy.

When does a landlord waive their right to evict a holdover tenant?

If they accept rent after they’ve held over; can evict for other reasons

What happens if the landlord notified the tenant of a rent increase prior to termination?

The holdover tenant is now bound to a new term and new rent if proper notice was given by the landlord.

What are risks to the landlord in a landlord/tenant relationship?

Tenant may not pay.

Tenant may damage property.

Abandonment.

Market rents increase substantially (economic).

What are risks to the tenant in the landlord/tenant relationship?

Landlord may not maintain the property.

Undesirable neighbors.

Security deposit isn’t returned.

Market rents declining (economic).

What is the landlord duty to deliver possession?

The landlord has the duty to deliver possession of the leased premises on day 1 of the lease.

What is the English rule for duty to deliver possession?

Majority rule; landlord is obligated to put tenant in actual physical possession on day 1 of the lease.

What is the American rule for duty to deliver possession?

Minority rule; landlord is only required to give tenant the legal right of possession on day 1 of the lease.

What is the general rule for transfers of property rights?

All property interests are freely transferable unless otherwise limited.

How is an assignment or sublease determined?

By essence of the transaction

How are provisions interpreted when they restrict transfer of property rights in leaseholds?

Narrowly against the landlord

What are the types of transfers of leaseholds?

Subleases and assignments

What is the traditional rule for consent in transfers of leases?

Landlord can refuse for any or no reason if there is a provision requiring consent.

What is the modern rule for consent in transfers of leases?

Consent should only be withheld for a commercially reasonable reason (good faith & fair dealing).

What is the restatement view for consent in transfers of leases?

Restraint on alienation that requires the landlord’s consent shouldn’t be withheld unreasonably; there must be a valid reason.

What is a sublease?

A transfer of less than all interests of the lease.

Where do privity of estate & privity of K lie in a sublease?

With the original tenant

What is an assignment of a lease?

A transfer of all interests of the lease

Where do privity of estate & privity of contract lie in an assignment of a lease?

Privity of estate is with the assignee; privity of contract is with the original tenant.

What is the original tenant’s role in an assignment of a lease?

Surety/guarantor

How can the original tenant escape responsibility from a lease?

Through release or novation

What is the difference between release and novation?

A release is that in which a landlord releases the original tenant from liability; a novation is a new agreement whereby the landlord agrees that the assignee will take over the entirety of the lease and the original tenant is no longer responsible.

What is a partial assignment of a lease?

A transfer of the physical possession of a part of the lease premises for the remainder of the lease.

What is a default of a lease?

A breach of one of the tenant’s obligations.

What are the landlord’s remedies when a tenant defaults?

The landlord can sue for damages, terminate the lease, evict the tenant, and reclaim the property.

What is abandonment?

Tenant leaves and has no intention of returning.

What is surrender?

Tenant has tendered the surrender of the lease and the landlord has accepted.

Can a landlord use self-help to retake possession?

No, they must use their legal remedy.

What are the landlord’s duties?

(1) duty to deliver possession

(2) duty to mitigate damages

(3) covenant of quiet enjoyment

(4) implied warranty of habitability

What is the landlord’s duty to mitigate damages?

LLs must take reasonable steps to mitigate their damages by attempting to re-rent the premises to a new tenant.

What is the majority rule for security deposits?

There is a limit on the amount a LL can charge; non-interest-bearing.

What is the minority rule for security deposits?

There is no limit on the amount a LL can charge; interest-bearing.

What can landlords deduct from security deposits?

(1) damage beyond ordinary wear & tear; (2) unpaid rent/utility bills; (3) cost of cleaning in some jurisdictions.

What happens if a landlord fails to mitigate damages?

Generally, a LL can still recover, but only for damages that could not have been avoided.

What is the covenant of quiet enjoyment?

Defense asserted by tenant; obligation of LL; overlaps with implied warranty of habitability.

What does the covenant of quiet enjoyment say?

LL must not interfere with the tenant’s possession, occupancy, and beneficial use of the leased premises.

Where does a covenant of quiet enjoyment exist?

Implied in residential leases; express in commercial leases.

What is required if there is a potential breach of the covenant of quiet enjoyment?

A tenant must inform the LL, and the LL must take reasonable steps to remedy the situation.

When does a breach of the covenant of quiet enjoyment occur?

when the LL (1) actually evicts or (2) constructively evicts the tenant, resulting in LL terminating the lease

What is actual eviction?

LL denies tenant occupancy of the leased premises.

What is partial eviction?

LL denies tenant occupancy of less than all of the leased premises.

What is constructive eviction?

LL through action/inaction deprives the tenant of the use and enjoyment of the leased premises.

What does a breach of the covenent of quiet enjoyment require the tenant to do in order to assert it as a defense?

Move out promptly

What is the implied warranty of habitability?

Applies in all residential leases; overlaps with covenant of quiet enjoyment; cannot be negotiated away

What does the implied warranty of habitability say?

LL impliedly promises that the leased premises will remain suitable for human habitation throughout the period of the lease.

How is the implied warranty of habitability determined?

Often tied to house codes; if none, reasonable suitability.

What is the question to be asked for purposes of determining habitability?

Does the impact of the defect in the premises affect the safety, health, and habitability of the leased premises?

This does not require every amenity to be maintained.

What must happen to assert the implied warranty of habitability?

Tenant must notify the LL, and LL must have a reasonable opportunity to correct the deficiency.

What can a tenant do if there is a breach of the implied warranty of habitability?

Tenant may (1) sue to rescind the lease, (2) stay on premises & pay rent to sue for damages, (3) withhold rent to force LL to bring suit, or (4) repair & deduct.

What is repair & deduct?

Tenant can make repairs & deduct repair from rent in certain instances, where (1) LL has been given notice, (2) LL has been given opportunity to make the repair, (3) deduction is at most one month’s rent, (4) exception is used once per year at most, and (4) tenant was not responsible for the damage or maintenance.

What are the tenant’s duties?

(1) pay rent

(2) not commit waste

(3) comply

(4) not use the leased premises for criminal conduct

What are the three types of waste?

Affirmative, permissive, ameliorative

What is affirmative waste?

Tenant takes affirmative actions by doing things causing damage.

What is permissive waste?

Tenant allows damage through neglect or negligence.

What is amelioriative waste?

Tenant makes improvements without LL’s permission.

What happens if a landlord accepts a surrender?

tenant obligations cease

What is retaliatory eviction?

usually set forth in statute; if a LL tries to evict a tenant within a certain period after exercising legal rights, the eviction may not be allowed to proceed.

What are the types of acquisition of property?

Capture, finding, creation, purchase, adverse possession, gift

What are the types of acquisition by creation?

Patents, copyrights, and trademarks

What is a patent?

Protection for 20 years granted for novel, useful, nonobvious processes or products, awarded for any composition of matter or process.

What is a copyright?

Protection for 70 years after the death of the creator, granted for creative works fixed in an tangible medium with the exception of fair use or license.

What is a trademark?

Protection against unfair competition, governed by the Lanham Act, and granted for words or symbols indicating the source of a product or service.

What is the law of acquisition by capture?

Rights belong only to those who gain actual physical possession of the wild animal; mere pursuit is not enough.

What is the rule for property owners and wild animals?

Property owners have constructive possession of all wild animals on their land.

What is a wild animal?

Animals that are not in anyone’s ownership and have not been domesticated.

What are exceptions to the rights for acquisition by capture?

• Mortally wounding the animal may yield rights equivalent to capture if it’s not possible to take immediate possession;

• investment of time, skill, and effort into capture for business purposes yields rights against neighbors deliberately and maliciously interfering;

• if an animal previously captured escapes, the first capturer retains no rights.

What is an exception to the exception for acquisition by capture?

If a captured animal becomes domesticated, the owner retains rights.

What are the types of acquisition by finding?

lost property, abandoned property, mislaid property

Who has rights to lost property?

The finder has rights superior to everyone except the true owner.

What if property is found, then lost, and found again by someone different?

The first finder retains the rights.

What if the property is stolen?

The thief retains the rights of the finder.

What if the property was found on the land of another who was not in actual physical possession of the property and was unaware of the presence of the item?

The finder retains the rights

What happens if the property is found on the property of another who was in physical possession but didn’t know of the presence of the item?

The property owner retains the rights

What if an employee of the property owner finds something on the property?

The landowner/employer retains the rights.

Does where the item is found make a difference?

It may

What is different about shipwrecks?

The finder of a shipwreck may not be entitled to it.

Who retains the rights to abandoned property?

The first person who finds and asserts ownership over the property.

Who retains the rights in a bailment?

The original owner; bailees do not retain rights over the property.

Who has the rights to mislaid property?

The rights belong to the land- or business-owner where the mislaid property is found.

What is mislaid property?

property that is deliberately placed and accidentally left

What are the types of water rights?

Drainage/surface water, watercourses, and groundwater