Casenote Legal Briefs for Property, Rabin, Kwall, Kwall, and Arnold Fundamentals of Modern Property Law

478 Pages·2013·2.05 MB·English

by  Wolters Kluwer

QUICK COURSE OUTLINE
TABLE OF CONTENTS
PROPERTY
CONCURRENT ESTATES
LICENSES & PROFITS
TYPES OF PROPERTY INTERESTS
LEGAL CONSIDERATIONS ARISING FROM LEASE
LANDLORD AND TENANT
REAL COVENANTS & EQUITABLE SERVITUDES
EASEMENTS
FUTURE INTERESTS
LAWS AFFECTING INTERESTS
OTHER OWNERSHIP RIGHTS
GIFTS
INTEREST IN LAND: ESTATES
CONCURRENT ESTATES
RIGHTS OF CO-TENANTS BETWEEN THEMSELVES
1. Possession: Co-tenants are equally entitled to possession of the property and cannot exclude other co-
tenants.
2. Contribution for expenses: Co-tenants in rightful possession of property bear the cost of maintenance and
upkeep such as taxes, insurance, and ordinary repairs. Barrow v. Barrow, 527 So. 2d 1373 (Fla. 1988).
3.Right to lease property: A co-tenant may lease the property without the consent of the other co-tenants, but
lessee takes subject to the rights of the nonconsenting co-tenants. Carr v. Deking, 52 Wash. App. 880, 765 P.2d 40
(1988).
4. Accounting: Co-tenant in possession is responsible for accounting of all rents and profits from third party
lessees. Georgen v. Maar, 2 A.D.2d 276 [3d Dept. 1956], 153 N.Y.S.2d 826 (1956).
5. Ouster/Partition: Co-tenant takes affirmative actions to take sole possession and exclusive use of the
property; co-tenant may file action for partition in court to divide property into individual tenancies, unless all co-
tenants voluntarily agree to divide. Penfield v. Jarvis, 175 Conn. 463, 399 A.2d 1280 (1978).
6.Effect of will: Since a co-tenant's interest ceases at death, the co-tenant has no interest that can pass by will.
Huff v. Metz, 676 So. 2d 264 (Miss. 1996).
DOCTRINE OF WASTE (TENANT'S DUTY TO REPAIR)
A tenant who is not the owner of land, or possesses the same interest in property at the same time as one or more co-
tenants, is responsible to her co-tenants for any decrease in the value of the property through waste. Kimbrough v. Reed,
943 P.2d 1232 (Idaho 1997).
1.Permissive Waste: Tenant allows land to fall into disrepair; must preserve land and structures to a reasonable
degree.
2. Voluntary (Affirmative) Waste: Tenant cannot use natural resources on land; use is permissible only for
repair and maintenance, where permission is expressly given, or where land is only suitable for such use.
3.Ameliorative Waste: Tenant's use substantially changes the value of property, but the use increases the value
of the land; may do it where the market value of future interests is not impaired, and change in character of
neighborhood deprives the property of value in its current form.
COMMUNITY PROPERTY
1.Example:A husband and wife form a community, which is a separate entity that owns property for the benefit
of the husband and wife; all property acquired during marriage is generally characterized as community property.
Separate Property: Property acquired by gift, bequest, or devise during the marriage is characterized as separate
property, belonging to the individual spouse who receives it.
2.Division of the Community:
a. At Death: Community dissolves at death of one spouse; each spouse owns half an interest in each
community asset.
b. At Divorce: Community dissolves upon divorce and all community assets are owned by each spouse as
tenants in common and may be divided according to settlement.
LICENSES & PROFITS
LICENSE
1.Bare revocable interest to use property for limited purpose and duration.
2.Irrevocable License: Cannot be revoked if consideration is given.
PROFITS
Right to come onto land solely to remove minerals or other value.
TYPES OF PROPERTY INTERESTS
INTERESTS IN THINGS
1.Wild Animals:
a.Right to possess: Deprive them of natural liberty [Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. 1805).]:
i.Actualphysical possession.
ii.Mortally wounding/continued pursuit.
iii.Capture/netting.
2.Natural Gas and Oil:
a.Right to possess: Whoever extracts first regardless of where.
3.Lost Property:
a.Definition:
i.Lost: Possessor can no longer find it.
ii.Mislaid: Possessor voluntarily leaves it, but forgets where.
iii.Abandoned: Possessor voluntarily relinquishes possession; ordinarily belongs to finder.
iv.Treasure trove: Property hidden and found, owner unknown.
b. General Rule: Prior possessor has superior rights to finder. Armory v. Delamirie, 1 Strange 525, 93 Eng.
Rep. 664 (1722).
c.Owner of Land (Locus in Quo): Owner of land where lost property is found has superior rights to finder
who is trespasser. Favorite v. Miller, 407 A.2d 974 (Conn. 1978).
4.Bailments/Borrowed Property:
a.Definition of Bailment: Owner (bailor) entrusts goods to possession of another (bailee), who is in lawful
possession of goods and has title against wrongdoers.
b.Legal Relationship: Bailee is liable to bailor for negligent damage to goods, or conversion.
OTHER INTERESTS IN LAND
1.Easements: A nonpossessory interest entitling holder to some type of use or enjoyment of another person's
land.
2. Covenants/Equitable Servitudes: A covenant is a type of servitude created by deed or contract and whose
benefits or burdens “run with the land” to bind successors in interest. When the rules regarding real covenants are
not met, the agreement may be enforced in equity as an equitable servitude.
3.Licenses: Owner grants permission to another to use the land.
4.Profits: An easement entitling holder to come onto the land in order to take something off it.
MISCELLANEOUS PROPERTY INTERESTS
1.Bona Fide Purchaser (BFP):
a.Definition: One who takes possession:
i.In good faith,
ii.For valuable consideration, and
iii.Without notice of any wrongful possession.
b. Interest in Property: A BFP has superior rights to others claiming an interest in the same property,
including the actual owner, where the BFP takes possession in good faith and pays value.
2.Adverse Possessor (AP):
a. Definition: One who takes possession contrary to the possessory rights of another. Requires that
possession by the AP throughout the entire statutory period required be:
i.Actual; open and notorious; exclusive; continuous; and hostile under Claim of Right.
b.Interest in Property: Adverse possessor acquires superior title good against all the world.
LEGAL CONSIDERATIONS ARISING FROM LEASE

LANDLORD AND TENANT
THE LEASE
The interest in property between a landlord and tenant is controlled by the lease.
1.For a proper lease:
a.Formal lease requirements:
i.Identification of landlord and tenant;
ii.Adequate description of the premises;
iii.Amount of rent/dates to pay rent (if no rent amount, reasonable value); and
iv.Duration of lease.
b.Statute of Frauds (if lease > 1 year):
i.Must be in writing; and
ii.Signed by the party to be charged.
2.The lease terms create the type of estate (“leasehold”).
a.Periodic Tenancy: Right to occupy tenancy for fixed period (year, month, week, or day).
b.Tenancy for Years: Right to occupy tenancy beginning on a fixed date and ending on a fixed date.
c.Tenancy at Will: Right to occupy tenancy “at will” as long as both landlord and tenant so desire.
d.Tenancy at Sufferance: Holdover tenant is treated as trespasser and evicted, or new periodic tenancy is
imposed.
3.Thelease defines rights and duties between Landlord and Tenant.
a.Example: All L's duties are done in exchange for T's payment of rent, if landlord breaches duties, tenant can
withhold rent, if T breaches duties (e.g., fails to pay rent), L can evict.
b.Lease terms/duties are independent:
i.Failure to perform by one party does not excuse other party from performing.
ii.Exception: if warranty of habitability is breached.
4.Other legal considerations arising from lease:
a.Assignments/Subleases (see chart on p.1)
b.Fixtures: Personal property or chattels that have been permanently attached to land:
i.Common Law: Becomes property of landlord.
ii. American courts: Look to objective intent of tenant, determined by: manner of attachment, damage
from removal, fixture in context of property. Sigrol Realty Corp. v. Valcich, 11 N.Y.2d 668, 180 N.E.2d 904, 225
N.Y.S.2d 748 (1962).
iii. Trade fixtures: Used to carry on a trade or business; tenant can remove but is responsible for any
damage. Restatement of Property: all fixtures installed by T are trade fixtures.
LANDLORD'S RIGHTS / REMEDIES
1.Security deposit: L retains amount of posted deposit for T's costs and damages.
2.Rent acceleration clause: If T defaults on rent, all future rents become immediately due and payable.
3.Sue for unpaid rent: In the absence of an acceleration clause, L may only sue for the rental amount owed for
the current lease period.
4.Eviction: If T materially breaches any lease term, including failure to pay rent timely; may evict by: ejectment,
self-help (physical ouster), or summary proceedings.
DUTIES OF LANDLORD
1.Duty to Deliver Possession:
a.Right to Possess: Breach if someone has superior right to possess at time of commencement of lease; T not
required to move in
b.Actual Possession: Under English Rule, L must deliver actual possession. Dieffenbach v. McIntyre, 208 Okla.
163, 254 P.2d 346 (1952); under American Rule (minority), L's not required to deliver. Hannan v. Dusch, 154 Va.
356, 153 S.E. 824 (1930).
2.Covenant of Quiet Enjoyment (implied): L promises that neither L nor third party will interfere with T's use
and enjoyment of premises.
a.Actual Eviction: Physical expulsion or exclusion from possession.
b.Partial Eviction: Denial of possession for only part of the premises.
i. Common Law: T's obligation to pay entire rent is suspended until possession of entire premises
restored.
ii.Restatement: T can abate rent or terminate lease and seek damages; cannot remain in possession and
pay no rent.
c.Constructive Eviction: L wrongfully performs or fails to perform some duty that substantially deprives T of
use and enjoyment of premises.
i. Common Law: L has no duty to repair premises unless L & T so agree; Statute/Case Law: L makes
reasonable repairs. Chambers v. N. River Line, 179 N.C. 199, 102 S.E. 198 (1920).
3.Warranty of Fitness for Particular Purpose (implied):
a.Common Law: In the absence of express lease provision, no warranty by L that premises would be fit for
any purpose. Anderson Drive-In Theatre Inc. v. Kirkpatrick, 123 Ind. App. 388, 110 N.E.2d 506 (1953).
b.Exceptions: Short-term lease of furnished residence and building under construction when rented. Ingalls
v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892).
4.Warranty of Habitability (implied): L required to take all reasonable action to maintain premises in habitable
condition, including duty to repair residential leases only; for commercial leases, implied warranty of suitability for
intended commercial purpose. Davidow v. Inwood North Professional Group, 747 S.W.2d 373 (Tex. 1988).
5.Retaliatory eviction: Lmay not evict T, refuse to renew lease, terminate a periodic tenancy, or increase T's
rent in retaliation for T's prior actions. Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968).
a.Not applicable to commercial leases.
b.Tenant bears burden of demonstrating retaliatory motive of landlord.
LANDLORD'S TORT LIABILITIES
Generally, L not liable to T or third parties for injuries sustained on the premises.
1.Exceptions:
a.Common Areas. Johnson v. O'Brien, 258 Minn. 502, 105 N.W.2d 244 (1960).
b.Latent Defects: L fails to disclose.
c.Negligent Repairs: Only if L voluntarily undertakes to make repair.
DUTIES OF TENANT
1.Duty to Pay Rent: T's obligation to pay rent is independent of L's duties; therefore T must continue to pay rent
even if L fails to fulfill duties, unless warranty of habitability is breached.
2.Duty to Take Possession: No duty unless express or implied in lease.
3.Restrictions on use of leased premises:
a.Cannot use property for illegal purpose
b.Cannot commit waste (see “Doctrine of Waste” section under “Concurrent Estates”).
4.Duty to Repair: No duty unless T expressly agrees; if premises completely destroyed, T might be obligated to
rebuild.
5.Duty to Deliver Premises at End of Lease:
a.T must give premises over timely or be treated as a holdover.
b.Wrongful Abandonment: If T fails to pay rent and abandons the premises, L may:
i.Accept the abandonment as a surrender and end the lease,
ii.Leave premises vacant and sue for rent owed, or
iii.Re-let premises to minimize T's damages.
TENANT'S RIGHTS / REMEDIES
1.Remain in possession, and
a.Abate rent, or
b.Suspend rent
2.Terminate lease, and
a.Sue for damages, or
b.Quit premises.
REAL COVENANTS & EQUITABLE SERVITUDES
EQUITABLE SERVITUDES
1.Generally, same as real covenants except that no privity is required;
2.Therefore, must be enforced in equity.
3.Creation: Tulk v. Moxhay, 2 Phillips 774, 41 Eng. Rep. 1143 (Ch. 1848).
a.Express agreement.
b.Implied:
i.Implied Reciprocal Agreement.
ii.Common Scheme.
iii.Subdivision Plat.
iv.California rule: will not be enforced unless in deed. Werner v. Graham, 181 Cal. 174, 183 P. 945 (Cal.
1919).
REAL COVENANTS
1.Types of Real Covenants: Restrictive Covenants and Affirmative Covenants
2.Creation of Real Covenants:
a. Intent: Promisors intend to bind their successors in interest, or covenant will only be enforced against
original parties. Moseley v. Bishop, 470 N.E.2d 773 (Ind. App. 1984).
b.Touch and Concern: Successor to burden will only be bound where the covenant has a connection to her
use and enjoyment of the land. Neponsit Property Owners' Assn. v. Emigrant Industrial Savings Bank, 278 N.Y. 248,
15 N.E.2d 793 (1938).
c.Privity of Estate:
i.Horizontal (for burden to run): between original promisor and promisee.
ii.Vertical (for benefit to run): between original parties and their assigns or successors.
d.Must also comply with Statute of Frauds.
3.Scope of Real Covenants: Benefit to dominant estate and burden to servient estate.
4. Termination of Real Covenants: Not really termination, but burden or benefit will not run once
horizontal/vertical privity is gone.
EASEMENTS
SCOPE OF EASEMENTS
1. Any change in use beyond the intent of the parties that created the easement is beyond the scope of the
easement and not allowed.
2.Intent of parties is guiding principle.
3.Increases in frequency or intensity of use are generally permissible.
4. Scope may be determined from duration of easement, location of easement, or reasonable expectation of
parties.
TRANSFER OF EASEMENTS
1.In Gross:
a.Burden: Always transfers with land.
b.Benefit: Generally transferable unless use as transferred creates unreasonableburden on servient estate.
2.Appurtenant:
Note: No separate document is required to effectuate transfer, nor is notice of either required.
a.Burden: Always transfers with land.
b.Benefit: Always transfers with land.
TERMINATION OF EASEMENTS
Termination of easements can be made by:
•By Terms.
•Merger of Dominant and Servient Estates.
•Prescription.
•Forfeiture.
•Changed Conditions.
•Frustration of Purpose.
•Abandonment–requires intent and clear act.
CREATION OF EASEMENTS
1.Express Grant: Usually contained in a deed.
2.Deed: Owner of land may convey entire estate and reserve an easement for her own use, or to the benefit of a
third party.
3.Donative Transfer: Created by gift deed or will; consideration not necessary unlessintent is not clear.
4.Contract: Reciprocal easements are adequate consideration.
5.Estoppel: Easement is asserted in equity when land owner who permits certain use attempts to revoke that
use at a later time.
6.Implication: In the absence of express agreement, intent of parties to create an easement can be implied from:
a.Prior use requires that
i.Dominant/servient estates were originally a single estate;
ii.Prior use is permanent or long term, and not temporary;
iii.Prior use is apparent and not concealed [Romanchuk v. Plotkin, 215 Minn. 156, 9 N.W.2d 421 (1943)];
and
iv.Prior use is reasonably necessary to enjoy the property.
b.Necessity requires either of the following:
i.Unity of title followed by a severance;
ii.Strict necessity, e.g., parcel is landlocked.
7.Prescription: Like adverse possession, use must be: