Term
Acquisition by Capture
pierson v. post
ghen v. rich |
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Definition
actual possession or constructive possession
considerations: mortal wound and socially useful enterprise
policy: socially useful enterprise, custom?
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Term
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Definition
(1) deprive of natural liberty, (2) "manifest intention" to seize the animal
these are similar to title requirements for finders, (1) physical control (2) intent to gain dominion over object |
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Term
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Definition
(a) application is limited to those working in the industry
(b) custom is recognized by whole industry
(c) requires of the first taker the only possible act of appropriation
(d) necessary to survival of the industry
(e) works well in practice
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Custom is BAD if (a) benefits industry but not society as a whole; (b) may be dangerous for those employed in the industry (c) wasteful
pneumonic: (1)Apple Laptops (2)Work (3)Fucking Awesome (4) Now Surf (5) Web Perfect |
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Term
| quasi-property / doctrine of misappropriation |
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Definition
(1) skill, time, effort, $ cost
(2) basis of business / profit
(3) incentives (QP rights encourage business)
(4) bad faith
pneumonic "(1) stealing (2) business (3) involves (4) bad faith"
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Good Quotes:
1.
"Lets not go into the question of whether news is property, instead we'll go into the question of whether one has competed unfairly."
2.
"When P has by substantial investment created intangible thing of value not protected by intellectual property law, and D appropriates intangible at little cost so P is injured and continued use is jeopardized, action for misappropriation will lie" |
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Term
replevin vs. trover
ejectment vs. trespass |
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Definition
replevin: personal property; injunction
trover: personal property, damages (a) value of chattel at time conversion occurs or (b) value of P's interest
ejectment: real property, injunction
trespass: real property, damages |
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Term
involuntary bailment
aka constructive bailment |
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Definition
owner loses his shit and another person finds.
Possession/title (1) physical control (2) intent to assume dominion over the object
Possession is by accident or mistake; relativity of title and rules surrounding lost / abandoned / mislaid come into play |
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Term
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Definition
| bailor (owner) gives possession to bailee intentionally but without intending to transfer title |
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Term
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Definition
| 1) “A man possesses everything which is attached to or under his land.” 2) “Lost” item goes to one who “found” it. |
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Term
finder vs. owner of premises
for objects under soil and in his home/business and WHY |
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Definition
(1) a landowner owns that which is under his soil
(2) if another finds it, the case is finder vs. true owner.
(3) therefore - owner
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(1) In a private home, the owner of the home has constructive possession over lost goods.
(2) but according to Hannah, the owner does not have constructive possession of objects he is unaware of;
(3) these rules conflict, so argue both sides
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(1) a business person is more likely to return lost goods to true owner
(2) but floor of business is "public space" if thing is lost - Bridges v. Hawkesworth
(3) argue both sides. |
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Term
| lost vs. mislaid vs. abandoned |
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Definition
intent of true owner
1. lost - accidental; owner unaware; goes to finder
2. mislaid - intentional placing but accidental leaving; goes to owner of premises; if public place, may go to finder (shop floor in one case, but not another.)
3. Abandoned - owner intends to give up title; goes to finder
servants always lose - i.e. rings at bottom of pool case; was lost definitely but goes to owner of house. (attached to land argument?)
* treasure trove * 1. so long concealed true owner is dead / abandoned the property. Goes to finder unless servants (gas tank case); in airplane case, too much money to be abandoned so goes to owner of airplane. |
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Term
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Definition
(1) intent (2) delivery (constructive?) (3) witness (who affirms gift made during th elife of the donor which is conditional upon, and takes effect upon death)
manual deliver required when articles are present and capable of manual delivery.
Constructive delivery may occur when actual is impractical. ex: The things intended to be given are not present or when they are incapable of manual delivery (too big / heavy / etc.)
Key to desk is not sufficient for life insurance policy inside the desk. |
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Term
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Definition
(1) intent (2) delivery (3) acceptance
inter vivos gift given by will vests title immediately via future interest;
Intent can be established via letter; delivery is not necessary until the interest vests at donor's death.
"symbolic delivery" - intent through letter; acceptance implied b/c item is valuable. |
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Term
| Adverse Possession: Factors |
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Definition
1. Actual Entry - giving exclusive possession (not sharing with owner.. must treat it like your own)
2. Open and Notorious - putting the owner on reasonable notice he has cause of action. Must use the property as an actual owner of it would.
3. Adverse / Hostile - a hostile claim of right not w/ consent of TO. You can only obtain through AP the space occupied.
4. Continuously for SP - no interruption by true owner; Tacking w/ privty is OK, though some jurisdictions no tacking if ousted;
AP can only gain same interest that O posses (life estate, fee, etc.) |
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Term
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Definition
| real hostility, mistake alone is not enough (bad faith style) |
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Term
| AP - Connecticut doctrine: |
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Definition
Objective test - no inquiry into state of mind of person who made entry; "Actions speak louder than words"
intent not important
(Majority position) |
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Term
| AP - subjective test: "good faith standard" |
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Definition
bona fide or good faith belief that he has title. AP not possible when they know the truth; no intentional AP.
(minority position) |
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Term
| AP - color of title required |
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Definition
| erroneous document required; if title to entire parcel of land and AP on it, APer can get whole parcel. |
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Term
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Definition
a few inches of encroachment is AP if people weren't aware, even w/ erroneous color of title.
if people were aware, then no AP - Connecticut style |
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Term
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Definition
1. denial of variance would result in unnecessary hardship to the owner
2. the need for the variance is caused by a problem unique to the owner's lot
3. The variance would not be inconsistent with the overall purpose of the ordinance or inconsistent with the general welfare of the area
a. Negative criteria: effect on character of neighborhood
• Must not hurt the public good
• Must not hurt the purpose of the ordinance
b. Undue hardship: property has no value at all (doesn’t mean personal hardship)
• Ps here made efforts to bring property into compliance by buying adjoining lot
• Hardship can’t be self-inflicted, like if they had bought lot after zoning restriction went into effect |
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Term
| aesthetic zoning justifications: |
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Definition
home values, may affect desirability to live in area hence reducing HO taxes (no porn shops), pretty much anything related to value, and argue safety if you can.
a zoning ordinance based SOLELY on aesthetics with no other justification is unconstituional |
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Term
| Standing for exclusionary zoning violation |
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Definition
1. zoning must have prevented project from being built
2. P would have probably become a resident of the area if zoning overturned and project built |
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Term
| zoning - general constituionality |
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Definition
1. not arbitrary / capricious
2. legitimate state interest
promotes safety & security, reduces street accidents, preserves environment in which to raise children, aids fire prevention, etc. Ordinance is rationally related to furtherance of goals.
a. Rational Basis Review: Law must advance public health, safety, morals, or general welfare (police power)
• Then, unless law infringes on const right, will be upheld if means chosen to achieve legit state interest is rationally related to that interest
• Court would declare it unconstitutional only if provision is clearly arbitrary and capricious
b. Strict Scrutiny: Once law infringes on individual’s fundamental constitutional right, burden on state increases.
• State must show it is trying to advance a compelling state interest
• Even if state’s interest outweighs infringement on individual’s fundamental right, statute must be narrowly tailored to achieve interest |
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Term
| Types of Public Use? (justifications) |
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Definition
a. Overall economic benefit to public
b. Doesn’t mean public actually gets to use property
c. Utilitarian analysis—are benefits greater than cost?
d. Factually dependent
e. Public benefit or purpose (focus on ends rather than means) |
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Term
| easement by necessity: elements |
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Definition
(1) originally, there was unity of ownership;
(2) easement is necessary / not a convenience
(3) necessity existed at the time estates were severed. |
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Term
| Landlord's options when undesirable holdover tenant |
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Definition
1. evict (action in ejectment)
2. treat as trespasser (action in trespass)
3. hold him as a tenant (tenant in sufferance)
if a landlord elects to treat the tenant as a trespasser but fails to pursue the remedy of eviction and accepts checks for rent due, it creates an extension of the lease on a month-to-month basis. |
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Term
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Definition
(1) reasonably necessary for dominant land's enjoyment
(2) previous use was apparent (dude knows or should have known) - sewer pipes case. |
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Term
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Definition
1. own a part, right to possess/enjoy whole
2. interests are descendible, divisible, alienable
3. no right of survivorship
4. no rent unless ouster
5. no adverse possession w/o ouster (b/c no hostility) |
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Term
tenancy in common:
severence |
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Definition
partition in kind - suit where land is divided by contribution
partition by sale - assets divided by interest. partition by sale will only be ordered if physical partition is impractical or or inequitable and where parties' interests are promoted by the sale. (garbage dump case) |
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Term
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Definition
4 unities
1. take their interests at the same Time
2. by the same Title
3. with Identical equal Interests
4. identical rights to Possess the Whole
PITT - backwards |
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Term
| Joint Tenancy: Characteristics in general |
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Definition
1. Right of survivorship
2. Alienable interests - but not dividisble or descendible b/c of of right of survivorship |
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Term
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Definition
1. unilateral sale - doesnt need consent of other; this severs JT & becomes TIC; other JTs will stay JT and just be a TIC w/ the buyer
2. Partition - (a)voluntary agreement (b) partition in kind - must be in everyone's best interests and is divided equally; (c) forced sale - if in best interest of all this judicial action divides all proceeds proportionally.
3. Mortgage / lien - (a) title states hold that a mortgage against a JT's interest severes the JT and creates TIC; only that portion of the JT is subject to the creditor
(b) "lien states" - a mortgage against a JT's interest in property severs the tenancy as to onlyt he mortgage when the mortgage is foreclosed. |
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Term
| Tenancy by Entirety: creation |
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Definition
| 4 unities and marriage; arises presumptively in any conveyance made to H and W unless clearly stated otherwise (TIE is not in every state). |
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Term
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Definition
1. protected marital interest w/ right of survivorship
2. creditor of only one spouse cannot touch tenancy
3. neither tenant acting alone can defeat the right of survivorship by a unilateral conveyance to a third party
4. transfer or mortgage of a spouse's undivided fractional interest (50%) w/o need of spousal intent
5. each can convey TIE w/o the other's consent and creditors can attach. |
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Term
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Definition
| suit for money owed - arises in tenancy situation where one tenant is charging rent / or otherwise collecting profit from the land and did not divide up the profit equally w/ his other tenants. |
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Term
| partition in kind: what do we have next? |
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Definition
1. creates a fee simple absolute in each partition.
2. if separated tracts are not equal in value the one w/ the more valuable plot may have to pay "owelty" |
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Term
| periodic tenancy: characteristics |
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Definition
1. open-ended lease;
2. continues for successive or continuous intervals until one party gives proper notice of termination
3. to T from month to month, to T from week to week - open ended nature of the leasehold. |
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Term
| periodic tenancy: notice of termination requirements |
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Definition
1. if the tenancy is from year to year or greater, six months is required. Otherwise, notice as long as the period of the tenancy is required (week to week, 1 week notice, etc.)
2. by private agreement the parties may choose to lengthen or shorten the CL notice provisions
3. terminates on the final day of the period |
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Term
| periodic tenancy: creation |
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Definition
1. express agreement (to T from month to month)
2. operation of law: tenant holds over after expiration of the term, if LL accepts T's rent he is accepting T as a hold over. |
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Term
| tenancy at will: characteristics |
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Definition
1. no fixed period duration; to T as long as T or L desires
2. terminates at death of L or T.
3. can be terminated by both parties freely. if conveyance only allows one party to terminate, its not a Tenancy at wll. |
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Term
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Definition
| 1. Created when T has wrongfully held over past the expiration of the lease (holdover); gives this holder a property interest in order to permit LL to get some rent from the holdover; |
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Term
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Definition
unless a tenant has abandoned or surrendered the property a landlord may not engage in self-held to reclaim premises;
landlord was PO'd at T for unauthorized remodeling and changed the locks on his ass. |
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Term
| T breached duty to pay rent. Landlord may: |
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Definition
1. evict and sue for rent owed
2. continue the relationship w/ T and sue for rent owed.
3. CANNOT engage in self-helf; if L does this he's liable for civ and maybe crim penalties. |
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Term
| tenancy at will - assignment? |
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Definition
| Hell no. The tenancy terminates if either the landlord or tenant tries to assign. |
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Term
| To T for 1 year, but LL can terminate at any time |
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Definition
Determinable term of years
"if a provision of termination by one party is graphed on to a term of years or a periodic tenancy the lease creates a determinable, not a tenancy at will.
not a tenancy at will b/c T cannot terminate but is given an estate for a set time.
if it had said, "T for as many years as T desires at a rent of $5" - many courts imply a tenancy at will b/c there is no certain duration |
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Term
| termination of tenancy at will by tenant |
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Definition
| expressly or impliedly surrendering by telling LL |
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Term
Rent received from third person:
What do co-tenants get ? |
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Definition
If the paying co-tenant receives rent from a third person, she must account to her co-tenant for the net rents after deducting taxes/costs
b. Repairs: A co-tenant who makes necessary repairs cannot compel contribution from her co-tenant. Must wait until an accounting or partition. Can be offset when there is 3rd party renting.
if co-tenant is in sole possession they are likely responsible for all of taxes, etc. |
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Term
A and B are co-tenants of land that cost $20K. A erects a building thereon at a cost of $10K. On partition sale the property is sold for $55k, land being worth $30k and the building worth $25K.
How many money do they get? |
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Definition
| . From the proceeds A should receive one-half the value of the land ($15k) and the whole value of the building ($25k), for a total of $40k. B should receive $15k. |
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Term
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Definition
8. Adverse Possession: If the adverse possession continues for the statutory period, it will ripen into title in the adverse possessor, note exclusive possession, collecting rents, or refusing to admit a co-tenant into possession is not enough.
To get AP a co-tenant must give the other co-tenants clear and unequivocal notice of repudiation of the common title. Any co-tenant has the right to be in possession of co-tenancy property. Thus, if the acts of the possessor are susceptible of explanation consistent with the existence of the common title, they don’t give notice. |
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Term
| Term of years determinable: |
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Definition
| A term of years (and a periodic tenancy as well) may be made terminable on some event, or subject to condition subsequent, in the same manner as a freehold may be made terminable on an event. Thus if L rents to T for 10 years "so long as used for a sawmill." |
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Term
| Tenancy of no fixed period terminable on some event creates a ______ |
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Definition
| Although tenancy for years requires that a calendar date be fixed or computable for its ending, in sometimes when the lease is terminable on some event but of no fixed period, courts have held that a tenancy for years has been created. The primary example of this is where O leases to A "for the duration of the war. |
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Term
| Term of years determinable: |
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Definition
| A term of years (and a periodic tenancy as well) may be made terminable on some event, or subject to condition subsequent, in the same manner as a freehold may be made terminable on an event. Thus if L rents to T for 10 years "so long as used for a sawmill." |
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Term
| Tenancy of no fixed period terminable on some event creates a ______ |
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Definition
| Although tenancy for years requires that a calendar date be fixed or computable for its ending, in sometimes when the lease is terminable on some event but of no fixed period, courts have held that a tenancy for years has been created. The primary example of this is where O leases to A "for the duration of the war. |
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Term
| Termination of tenancy for years: |
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Definition
| Since the parties know precisely when a term of years will end, a term of years expires at the end of the stated period without either party giving notice. No notice. |
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Term
| periodic tenancy - what is it? |
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Definition
A periodic tenancy is a tenancy for a period of some fixed duration that continues for succeeding periods until either the LL or T gives notice of termination (month to month) If notice of termination is not given, it is automatically extended for another period. Conditions and terms carry over.
NOTICE IS THE MOST IMPORTANT PART BUDDY |
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Term
| How does the Statute of Frauds apply to Landlord / Tenant relationships? |
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Definition
A term of years, periodic tenancy, or tenancy at will may be created by an express provision in a written lease. But where there is no written instrument creates problems. Exception: If less than 1 year most leases can be oral. Less than 1 years leases applies to most circumstances.
1. An oral lease of more than 1 years creates a tenancy at will. |
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Term
HOLDOVER TENANT:
describe; what can LL do? |
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Definition
| a T rightfully in possession who wrongfully remains in possession after termination—holds over, T is tenant at sufferance. The tenant at sufferance is something between T and a trespasser. The LL can evicts T (like a trespasser), or elects to hold T to another term (LL can’t do both). The prior tenancy of the holdover T may be a tenancy for years, a periodic tenancy, or even a tenancy at will. Thus if T has a one-year lease expiring October 1, and T stays on until October 2, LL can elect to hold T to another term. Or if T is a periodic tenant, and LL serves T with notice to quit and T does not leave when required, LL can hold T to another period. |
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Term
| T1 has paramount title to T2 on the day T2 is supposed to move in. What can T2 do? |
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Definition
| T2 can terminate lease prior to entry if he didn't know T1 had paramount title. |
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Term
| T breaches duty to pay rent but is out of possession of the premises; Landlord can ____ |
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Definition
a. Surrender; L could choose to treat T’s abandonment as a implicit offer of surrender which L accepts; T gives up the leasehold
b. Ignore the abandonment and hold T responsible for rent just as if T were still there; only available in minority of states
c. Re-let the premises; hold T liable for any deficiency; majority of courts think L must at least try to re-let (mitigation)
Indicative of move towards contract law in leases; goal is efficient use of land and resources. |
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Term
Landlord's Duty to Deliver possession
English Rule vs. American Rule |
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Definition
English Rule (maj.) - had to deliver actual possession and right to possession at the begining of term. If LL doesn't remove holdover tenant w/i a reasonable amount of time, he is in default.
a. Tenant's remedies: For the landlord's failure to provide actual possession, the tenant has several remedies. The tenant can terminate the lease and recover damages sustained by having to obtain quarters elsewhere. Or the tenant can affirm the lease, refuse to pay rent for the portion of the term during which he was kept out of possession, and recover damages.
American Rule - only legal possession - hannan v. Dush.
a. Remedies against the holdover tenant: The incoming tenant can sue to evict the holdover and recover damages. Or the incoming tenant can treat the holdover tenant as tenant for another term, with rent payable to the incoming tenant. Nothing against the LL. |
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Term
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Definition
ASSIGNMENT: In the absence of a prohibition in a lease, a T or LL may freely transfer his or her interest in the premises. If the tenant assigns his leasehold, the assignee comes into privity of estate with the landlord, which means that the landlord and the assignee are liable to each other on the covenants in the original lease that run with the land. Similarly, if the landlord assigns the reversion, the assignee and the tenant are in privity of estate. An assignment arises when a lessee transfers his entire interest under a lease. Ernst
Assignee and LL are in privity of estate (supplied b/c no privity of K). |
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Term
| Sublease Distinguished from Assignment: |
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Definition
If a T sublets the premises, and does not assign them, the T becomes the landlord of the sublessee. The sublessee is not in privity of estate and thus cannot be sued by LL. The crucial question, then, is when is a transfer an assignment and when is it a sublease?
1 Reversion retained: Majority At common law, a transfer by a tenant is a sublease if the tenant retains a reversion in the property after the transfer. If the tenant does not retain a reversion, the transfer is an assignment-still used. (includes right to reenter if leasee breaches a covenant with T) a. Partial Assignment-lessee transfers all his interest in some physical part of the premises. Most courts.
2 Right to reenter Substantial Minority if leasee breaches a covenant with T, T can retake possession.
3 Intention controls: Minority Some cases held that the intent of the parties determines whether a transfer is an assignment or sublease, and that reservation of an additional rent by itself is an indication that the parties intended a sublease. On the other hand, the transfer of the lease for a lump sum, even if payment is to be made in deferred installments, indicates an assignment. |
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Term
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Definition
Is a covenant running with the land, meaning she can sue any person on the covenant with whom she is in privity of estate.
Assignment establishes privity of estate, so assignee is liable for rent even if not mentioned in the assignment.
Original tenant is in privity of K, so he is liable to pay rent to LL if assignee doesn't pay it. There is no implied release from the duty of original T to pay rent, but he can get a release agreement with the landlord.
Assignee is not liable for rent owed from T1. |
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Term
L leases land to T for $200/month. T becomes 1 month in arrears. T then assigns the leasehold to T2, who becomes 4 months in arrears. T2 assigns to T3, reserving a rent of $250/month.
who owes whom what? |
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Definition
a) L recovers from T3: L can recover $200 a month from T3 for the time T3 is assignee. During this time, L and T3 are in privity of estate. (L cannot recover the extra $50 reserved in the assignment to T3.)
b) L recovers from T2: L can recover $800 from T2 because during the four months of default L and T2 were in privity of estate.
c) L recovers from T: L can recover $l000 (five months rent in default) from T because the parties are in privity of contract. In turn, T is subrogated to 12S claim against T2 for the rental in arrears during the time that T2 held the leasehold, so that T could recover $800 from T2 if T pays L the rent due for these four months |
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Term
| Landlord and Sublessor - what is their relation? |
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Definition
| None. There is no privity of K and no privity of estate. |
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Term
| Third-party beneficiary suits - assignee and sublease |
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Definition
| If an assignee or sublessee expressly assumes the covenants of the master lease, the assignee or sublessee is directly liable to the landlord as a third-party beneficiary of the contract between the tenant and his assignee or sublessee. The liability of the assignee or sublessee for performance of his promise continues, even though there is a further assignment of the leasehold. |
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Term
| Duty to Repair and changes to property - LL vs. Tenant |
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Definition
Common Law:
Absent any statute, implied covenant of habitability, or express covenant, T has a duty to make ordinary repairs to keep the property in the same condition as at the commencement of the term, ordinary wear and tear excepted. T is liable for torts that were his fault in light of his duty to repair. covenants for T to repair are enforceable.
Voluntary / Affirmative waste - T substantially damages the premises by an affirmative act, the tenant is liable to the landlord. Damage must be substantial and extend beyond his term (new window example - will be ameliorating waste even if increases value).
Modern - a longterm T can change structure if economic value is not diminished (even if "No alteration w/o LL's consent). |
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Term
| Destruction of Leased Premises |
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Definition
common law: destruction of building on leased property did not terminate lease or relieve T of his obligation to pay rent - b/c land survived and land was what was bargained for.
Modern: In light of urban development, statutes in a large majority of states have been enacted that say unless lease provides to contrary, T may terminate the lease and cease paying rent if premises are destroyed by elements or any other cause other than T's own negligence.
Eminent domain: A permanent taking of all the leased property by condensation proceedings extinguishes the leasehold. Temporary taking→still pay rent→recover $ from govt for temp taking. |
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Term
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Definition
| A standard lease usually contains a clause providing that the rent for the balance of the ten-n shall become payable in full on the T’s default in payment of rent or some other obligation. This is a rent acceleration clause. Most courts uphold a rent acceleration clause. |
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Term
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Definition
| If the rent is prepaid for some future period (e.g., prepayment for last month's rent), it may be retained by LL if T terminates the lease prematurely. |
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Term
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Definition
LL may wish to (i) evict the tenant during the term of the lease for nonpayment of rent or for other cause or (ii) evict the tenant who holds over after the term expires.
1. Termination for breach of covenant: At old common law, LL had no power to terminate a lease if the tenant did not pay rent. The LL’s remedy was to sue for the rent due. Many states now give LL power to terminate a lease for nonpayment of rent. As for other covenants, such as a covenant to repair, the independent covenants rule still applies, and the breach of a covenant by T does not give LL power to terminate the lease and evict the tenant.
2. Self-help: Some permit it. If not LL is liable for damages to T / T’s chattels if LL resorts to self-help. Remember Duche case, self -help is not cool in most places.
a. Common law: If T had no right to continue in possession, old common law permitted the use of such force as was necessary to expel T. Then forcible entry was made criminal.
b. Reasonable force permitted: Some states allow reasonable force to expel the tenant, without court process of any kind.
1) Peaceable entry permitted: Some states hold that the landlord can enter only by peaceable means. But what is peaceable? Definitions vary considerably. Changing the lock/locking out the tenant has been held forcible, not peaceable.
c. Self-help not permitted: A growing number of states prohibit self-help in recovering possession and require the landlord to resort to a statutory remedy. If she does not, she is liable in damages. Berg (Locked out of restaurant)
d. Self-help Lease provisions in non-self-help states-some courts allow it, other—as a matter of public policy do not.
3. Eviction through judicial process: If LL is entitled to evict T for breach of a covenant or for holding over at the end of a lease, LL may resort to the following judicial remedies.
a. Suit in ejectment: LL may bring an action in ejectment to recover possession of the premises. Very time consuming and rarely done by LL.
b. Summary proceedings: Every state has a summary proceeding whereby LL can recover possession quickly and at low cost. Notice is required, but it can be very short (3-days).
1) Issues that can be raised: It is sometimes said that the sole issue is whether the landlord or the tenant has the right to possession.
Defenses: The tenant can assert only those defenses which, if proven, would either preserve his possession as a tenant or preclude the landlord from recovering possession. (Breach of Implied Covenant of Habitability)
c. Not allowed for purpose of retaliation: Eviction for the purpose of retaliating against the tenant's assertion of his rights regarding maintenance of the premises may be forbidden. |
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Term
| Defenses to Eviction of T |
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Definition
Defenses: The tenant can assert only those defenses which, if proven, would either preserve his possession as a tenant or preclude the landlord from recovering possession. (Breach of Implied Covenant of Habitability)
c. Not allowed for purpose of retaliation: Eviction for the purpose of retaliating against the tenant's assertion of his rights regarding maintenance of the premises may be forbidden. |
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Term
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Definition
If T has no right to vacate the property but abandons it, LL may have several options: (i) terminate the lease; (ii) let the premises lie idle and sue T for rent as it comes due; or (iii) retake possession and attempt to relet the premises.
1. Landlord terminates lease: LL may terminate the lease on the tenant's abandonment; this creates an implied surrender. Implied acceptance of surrender is determined by the intent of the LL. T is liable only for rent accrued and for damages caused by the abandonment.
1) Intent Test-Are the LL’s action inconsistent w/ continuation of the lease or are LL’s action more consistent with LL repossessing and reletting.
a. Common law rule-no damages for anticipatory repudiation: The common law rule, is that LL cannot terminate the lease (rescind) and receive damages for anticipatory breach of contract. The theory is that a covenant to pay rent does not create an enforceable obligation until the rent is due. (lease must be kept alive)
If allowed, the LL’s damages are determined by the difference between the rent agreed upon in the lease and the fair rental value over the balance of the term.
c. Damages for decreased rental value: L can still sue T for difference between original rental amount and reasonable rental value of property if it has become devalued.
2. Landlord stands by and does nothing: LL leaves the premises vacant and sues for rent as it’s due.
a. No duty to mitigate damages: Under the older view the landlord does not have any duty to mitigate damages by finding another tenant.
b. Recent trend: Majority, LL has a duty to mitigate damages in residential leases only. A lease is treated as any other kind of contract and is not viewed, on this issue, through property glasses. If LL must mitigate damages with reasonable efforts, LL cannot leave the premises vacant and sue for rent as it comes due. Kridel
1) If LL does not mitigate-Courts are split. Some say no recover of rent, other say LL can recover the difference between agreed rent and amount of loss that could have been reasonably avoided.
c. Rent acceleration clause: It provides that the rent for the balance of the term shall become payable in full on the tenant's default of payment of rent or some other obligation.
3. Landlord repossesses and relets: Instead of standing by, LL may reenter and repossess the property for the purpose of renting it out to another tenant. Indeed, if LL must mitigate damages, LL must repossess. On the other hand, if the landlord has no duty to mitigate damages and LL reenters, the cases go two ways.
a. Repossession deprives T of possession and effects a surrender: the tenant is excused from further rent liability, and LL is entitled to keep any excess rents above the original rental price.
b. A surrender occurs only if the LL intends to terminate the lease; otherwise the LL is acting as agent for the T in reletting. |
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Term
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Definition
if not in lease, it will be implied.
common law: if covenant in the lease, then this covenant is dependent on lease - (remember, covenants are separate from lease - run w/ land. Ceases obligation of T to pay rent. |
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Term
| quite enjoyment: how to breach implied / express covenant |
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Definition
Actual or Constructive eviction.
at common law, T had to actually be evicted, i.e. leave the premises. not anymore, and now includes BENEFICIAL ENJOYMENT.
some jurisdictions include LL's duty to abate immoral conduct and other nuisances.
No fraudulent representations of property, must inform T of latent defects, and LL must maintain common areas in apt style housing. |
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Term
| Quiet Enjoyment: Actual Eviction |
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Definition
ceases rental obligation.... this goes for all evictions.
Partial eviction - if T evicted from any portion of the leased premises by LL, his rent obligation abates ENTIRELY, until possession is restored. T stays in possession and refuses to pay rent.
Restatement - says partial actual eviction is unfair to landlord so reduce rent proportionally, instead of entire abatement.
Partial Constructive eviction: T must still pay rent (majoirty) - note - CONSTRUCTIVE partial, not actual. |
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Term
| Quiet Enjoyment - Constructive Eviction: |
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Definition
Though fault of the LL, there occurs a substantial interference with the T's use and enjoyment of the lease premises, so that T can no longer enoy the premises as the parties contemplated.
elements:
USE / ENJOYMENT / AS CONTEMPLATED.
1.Permanence? - condition must interfere with permanent use
2. Substantial interference (RP test to determine use/enjoyment bargained for)
4. Vacate Premises - no longer required in some jurisdictions
3. Notice to LL and failure to remedy (reasonable time)
5. Fault of LL and not of T or third party(generally).
If T knows of defect prior to taking possession then he waives (unless agreement to contrary)
T can terminate tenancy. If he does, he may sue for rent paid and reasonable rent value, expenses in obtaining substitute premises, loss of profits caused by LL's omissions/actions.
LL is generally not responsible for one T's annoyance of another. Failure to furnish heat / electricity / etc may suffice for CE. |
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Term
| Implied Warranty/Covenant of Habitability |
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Definition
Premises must be fit for basic human habitation - including bare living requirements, so intrinsic it is not waiveable b/c to waive would be repugnant to public policy
tenant need not vacate and damages are the difference between the value of the premises as warranted and the defective premises. (contract approach as opposed to property/ conveyance-as-is approach)
a. Recourse for violation:
i. Move out and terminate the lease
ii. Repair and deduct; allowable by statute in a growing number of state
iii. Reduce rent or withhold all rent until court determines fair rental value – policy? Is this really something courts should be doing? Me thinks not.
iv. Remain in possession and pay rent and affirmatively sue for money damages (particularly useful in tight housing markets) |
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Term
| Chicago Board of Realtors v. City of Chicago (1987): |
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Definition
city enacted ordinance which codified the implied warranty of habitability and clarified tenant rights in the event of landlord breach; realtors contend it violates Const. and is void for vagueness. Held, the ordinance makes minor re-allocations of rights between tenant and landlord and is reasonably related to a legitimate public goal.
• J. Posner—it is unlikely that this ordinance will have it’s intended effect. Diminishing landlord’s recourse against nonpaying tenant is a disincentive to improve land. Favors the middle class because landlords will be less willing to take risk on low income tenant. |
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Term
| Doctrine of retaliatory eviction |
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Definition
| If T lawfully reports L for housing violation code, L is barred from penalizing T in any way. |
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Term
| Kendall v. Ernest Pestana |
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Definition
| Kendall v. Ernest Pestana (1985): π tried to assign his lease interest to a third party but landlord (Δ) refused to allow it. Held, public policy favors free alienability so a landlord may not withhold consent to assignment arbitrarily; justified refusal for proposed use ill-suited or illegal or requires altering premises; Contract arg.—the parties to the original contract assumed the risk of property values rising or falling, landlord cannot later get more than he bargained for by profiting from an assignment. Good faith and fair dealing = reasonableness |
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Term
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Definition
prohibits discrimination on the basis of race, sex, disability or familial status in the rental of housing
1. Landlord must show legitimate, non-discriminatory reason for refusing to rent
2. Discrimination includes refusal to make reasonable accommodations [42 USC § 3604(f)(2)]
Soules v. US Dept of Housing & Urban Development (1992): suit for discrimination based on familial status (mother, grandmother, and one child). Held, to make out a prima facie case of discrimination the π must show: (1) member of a statutorily protected class (2) qualified to rent unit in question (3) rejected although the housing remained available; the landlord was able to provide legitimate nondiscriminatory reason for refusing to rent (mother’s attitude) and questions about familial status do not per se violate the prohibition on discriminatory statements where there are housing codes that regulate the number of children per bedroom and a noisy tenant may violate nuisance laws. |
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Term
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Definition
| NY City Rent and Eviction Regulations prevented eviction of a resident family member of the deceased tenant of a rent controlled apartment; gay life partner who lived in apartment for 10 years sought to retain apartment after partner’s death. Held, the statute should be construed based on its purpose which was to prevent uncertainty, hardship and dislocation following the death of a leaseholder; expanding the notion of family to include life partners works to carry out this purpose. |
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Term
| Implied Warranty of Habitability: scope / interpretation of various jurisdictions |
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Definition
a. Scope of warranty: Different standards to measure LL's duty. Generally 2 groups.
1) Housing code: Some courts hold that the standards are those of the housing code. If there is a substantial violation of the housing code, the landlord's warranty is breached. Minor violations not affecting habitability do not constitute a breach.
2) Fit for human habitation: Some courts require that the premises be "fit for human habitation" or use similar language in respect to the standard. A violation of the housing code is compelling evidence of breach, but not conclusive. May be higher or lower than code (loud noise, no AC).
3) Notice to landlord: Several courts, assuming that the implied warranty incorporates a fault standard, have stated that the landlord has a reasonable time to repair after notice is given. |
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Term
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Definition
| The 1866 Civil Rights Act (aka Section 1982) bars "all racial discrimination, private as well as public, in the sale or rental of property." |
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Term
| The Fair Housing Act protects: |
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Definition
a. Race
b. Color
c. Religion
d. Sex
e. Familial status
f. National origin
g. Handicap
No advertising to discriminate against these either.
(older person preferred may discriminate against families).
3. Exemptions: The Fair Housing Act provides that private clubs, dwellings for religious organizations, and certain specified persons are exempt from the Act. These are exempted to protect privacy. |
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Term
| Exemptions from Fair Housing Act |
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Definition
3. Exemptions: The Fair Housing Act provides that private clubs, dwellings for religious organizations, and certain specified persons are exempt from the Act. These are exempted to protect privacy.
a. Single-family dwelling: provided no broker, owns 3 homes or less, and advertises w/o showing discrimination.
b. Small owner-occupied multiple unit: A person is exempt if she is offering to lease a room or an apartment in her building of four units or less, one unit of which she occupies, and she does not advertise in a discriminatory manner. (Mrs. Murphy’s Exemption).
c. Exemption under section 1982: the Civil Rights Act of 1866 does not have any exemptions for a single-family dwelling or for "Mrs. Murphy." Section 1982 applies to sales or rentals by an owner of a single-family dwelling or by Mrs. Murphy. A person denied admittance to Mrs. Murphy's apartments must sue under section 1982 rather than the Fair Housing Act of 1968.
4. Enforcement: [An aggrieved person may sue the seller or landlord in federal court. The court may give the plaintiff an injunction, actual damages, punitive damages, and reasonable attorney’s fees. |
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Term
| How to prove discrimination in violation of Fair Housing Act? |
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Definition
D. Proving Discrimination: To prove a violation of the Fair Housing Act or §1982, P must first establish a prima facie case.
1. First: to make a prima facie case, the plaintiff must show that:
a. She is a member of a statutorily protected class,
b. She applied for and was qualified to rent the designated dwelling,
c. She was denied the opportunity to inspect or rent the dwelling, and
d. The housing opportunity remained available for others.
2. Second, if P makes a prima facie case, the burden shifts to D to produce evidence that the refusal to rent was motivated by legitimate considerations having nothing to do with plaintiff's race, religion, ethnic origin, sex, disability, or family status. If race (or other protected status) is even one of several motivating factors, the statute is violated. Soules (ask about # of kids).
3. Third, once defendant introduces evidence of his alleged legitimate reasons, the burden shifts back to the plaintiff to show that the alleged legitimate reasons are pretextual.
4. Proof of motive: The Civil Rights Act requires proof of intentional or purposeful discrimination. The FHA, however, does not require proof of motive—proof of discriminatory effect is sufficient.
2. Second, if P makes a prima facie case, the burden shifts to D to produce evidence that the refusal to rent was motivated by legitimate considerations having nothing to do with plaintiff's race, religion, ethnic origin, sex, disability, or family status. If race (or other protected status) is even one of several motivating factors, the statute is violated. Soules (ask about # of kids).
3. Third, once defendant introduces evidence of his alleged legitimate reasons, the burden shifts back to the plaintiff to show that the alleged legitimate reasons are pretextual.
4. Proof of motive: The Civil Rights Act requires proof of intentional or purposeful discrimination. The FHA, however, does not require proof of motive—proof of discriminatory effect is sufficient.
pneumonic device:
Preventing Fairness (1) Means Preventing (2)Applicants Qualified (3) Despite (4) Readily Avaiable |
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Term
| Disproportionate Effect on Class |
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Definition
Violation of FHA doesn't only mean discriminatory purpose, but a discriminatory effect will do when its about race mostly, but others should apply.
Notice homos and marriages are not protected, just sexes and familys.
Handicapped people includes AIDS, recovering drug addicts, alcoholics, etc.
Reasonable Accommodations doesn't mean complete / absolute.... just reasonable. |
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Term
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Definition
LL knows in substantial violation of municipal housing code; if illegal, LL can get only reasonable rental value as it exists.... T is not responsible for rent agreed upon.
1. Must be illegal at time lease was made.
2. More than de minimis.
T doesnt have to leave property... he can just withhold rent w/o being evicted. |
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