Outline - Property - VI - Landlord-Tenant

Property (2005-2006)

VI. LANDLORD-TENANT

1. Leasehold Estates
   1. Term of Years – No notice of termination required.
   2. Periodic Tenancy
      1. Year-to-year – Half year notice
      2. Periods less than a year – Notice requires one period, no more than half year
   3. Tenancy at Will
      1. No fixed period
      2. Endures as long as both landlord and tenant want
      3. Termination
         1. Common Law – A lease giving tenant power to terminate also gives landlord same power.
         2. Minority – A lease terminable at lessee’s will creates life tenancy determinable. [Garner v. Gerrish, NY]
      4. Can be grafted onto term of years or periodic tenancy, making them determinable
   4. Tenancy at Sufferance: Holdovers
      1. Eviction (plus damages)
      2. Express or implied consent to creation of new tenancy
         1. Implied periodicity based on when rent due
         2. Implied periodicity not to exceed one year
      3. Crechale & Polles v. Smith – Refusal to extend lease negated by acceptance of rent checks and failure to eject.

2. Statute of Frauds - Certain sorts of contracts must be written down. Here’s a helpful mnemonic:

   Marriage (such as pre-nuptials) Year - Anything that involves more than one year (relevant here) Land Executor Goods greater than $500 Surety

3. Selection of Tenants – Fair Housing Act
   1. Class protected
      1. Race
      2. Color
      3. Religion
      4. Sex
      5. Familial status
      6. National origin
   2. Actions prohibited
      1. Refusal to sell or rent after bona fide offer
      2. Refusal to negotiate for sale or rental
      3. Otherwise making unavailable or denying
      4. Discrimination in terms, conditions, or privileges
      5. Discrimination in provision of services or facilities
      6. Making, printing, or publishing indications of preference, limitation, or discrimination
      7. Misrepresenting availability
   3. Exemptions
      1. Any single family home if the owner does not own more than three such homes.
      2. A room or unit in a dwelling meant for no more than four independent families if the owner lives in one.
   4. Prosecution and burden shifting [Soules]
      1. Prima facie case
         1. Plaintiff is member of class
         2. Plaintiff qualified for rent
         3. Plaintiff was denied or rejected
         4. Apartment/dwelling still available
      2. Defense
         1. Legitimate reason for denial unrelated to status
         2. Plaintiff had bad attitude
         3. Consideration of other tenants
      3. Rebuttal – Plaintiff now must show defense was pretextual rather than legitimate.
4. Delivery of Possession
   1. English Rule (majority) – There is an implied covenant requiring the lessor to put the lessee in possession.
      1. More likely to get possession
      2. Landlord better positioned to prosecute evictions
   2. American Rule (minority) – There is no implied duty upon the lessor as against wrongdoers to lessee’s right of possession. [Hannan v. Dusch]
      1. Unfair to hold landlords liable
      2. Incentives well-aligned
5. Assignments and Subleases
   1. Assignment – Transfer of all remaining interests
   2. Sublease – Transfer of less than all remaining interests
   3. Privity
      1. Privity of contract remains between landlord and first tenant unless specified (e.g., assignee or sublessee assumes all covenants or agrees to be bound by terms and conditions of master lease, making landlord third-party beneficiary of subcontract) [Ernst v. Conditt]
      2. Privity of estate between landlord and assignee
      3. No privity at all between landlord and sublessee
      4. Landlord may recover from those in privity, either of estate or of contract
   4. Consent (minority) – Where commercial lease requires prior consent, consent may be withheld only for commercial objections. [Kendall v. Ernest Pestana – Contractual nature, obligation to “good faith” and “fair dealing”]
      1. Financial responsibility of proposed assignee
      2. Suitability of use for particular property
      3. Legality of proposed use
      4. Need for alteration of premises
      5. Nature of occupancy (e.g., office, factory, clinic)
      6. Protection of landlord in ownership and operation of the particular property [Krieger v. Helmsely-Spear]
6. Tenants in Default
   1. Default
      1. Tenant fails to pay rent.
      2. Tenant fails to observe some other lease obligation.
   2. Tenant in possession [Berg v. Wiley]
      1. Where tenant has not abandoned, forcible reentry is wrongful eviction.
      2. Self-help repossession is wrongful eviction.
   3. Tenant who has abandoned possession [Sommer v. Kridel]
      1. Majority – Duty to make reasonable effort to mitigate damages
      2. Minority – No duty to mitigate damages

Outline - Property - V - Co-ownership and Marital Interests

Property (2005-2006)

V. CO-OWNERSHIP and MARITAL INTERESTS

1. Common Law Concurrent Interests
   1. Tenancy in Common
      1. Separate and undivided interests
      2. Each interest is descendible and conveyable
   2. Joint Tenancy
      1. All joint tenants together = single owner
      2. Right of survivorship
      3. Four unities
         1. Time – Acquired or vest at the same time
         2. Title – Same instrument or joint adverse possession; never by intestate succession or other act of law
         3. Interest – Equal undivided shares and identical interests
         4. Possession – Each has right to possession of whole
   3. Tenancy by the Entirety
      1. Similar to joint tenancy
      2. Only between husband and wife
      3. May not be severed unilaterally
   4. Severance
      1. Any joint tenant can convert into tenancy in common by conveying interests to third party, which severs joint tenancy between the third party and cotenants. [Riddle v. Harmon – Joint tenant can sever joint tenancy by conveying to self as tenant in common.]
      2. Creditors cannot reach deceased joint tenant’s interest, which disappears at death. [Harms v. Sprague – Under lien theory of mortgage (American rule), mortgagee cannot reach mortgage after mortgagor’s death; even under title theory, mortgage temporary interest similar to a lien.]
      3. Surviving joint tenant can eject the lessee on the death of the lessor joint tenant.
   5. Joint Tenancy Bank Accounts - Surviving account holder has right of survivorship unless challengers can show the depositor intended otherwise. (Majority rule)
   6. Partition
      1. Available to tenants in common and joint tenants
      2. Partition in kind – Divide property into equal shares.
      3. Partition by sale
      4. CT rule – Where property can practicably be physically divided, partition in kind is preferable to partition by sale. [Delfino v. Valeancis]
   7. Rights of Co-owners
      1. Tenancy in common – Absent agreement to pay rent or ouster, a cotenant in possession not liable to other cotenants for value of use, occupation of property. [Spiller v. Mackereth]
      2. Toint Tenancy – Joint tenant’s lessee vested only with lessor joint tenant’s share of property. [Swartzbaugh v. Sampson]
      3. In general – Non-ousted cotenant only entitled to portion of rent received; ousted cotenant entitled to portion of fair market value of share.
2. Common Law Marital Interests
   1. During marriage
      1. Creditors of one spouse cannot reach an estate by the entireties during the joint lives of the tenants. [Sawada v. Endo]
      2. Government may deprive convicted spouse of interest and take ownership if he survives innocent spouse. [1500 Lincoln Avenue]
   2. Termination by divorce
      1. Equal distribution (equal shares) vs. equitable distribution (account for other factors)
      2. Separate vs. community property (earnings or property acquired by earnings of either spouse during the marriage)
      3. In re Marriage of Graham – Educational degree (MBA) not property. (majority rule)
      4. Mahoney v. Mahoney – Compensation for financial contribution to professional degree can take the form of “reimbursement alimony”, but not for future value.
      5. Elkus v. Elkus (NY, minority) – Where one spouse’s contributions and efforts led to an increase in the value of the other’s career, the appreciation is marital property.
   3. Termination by death
      1. Common Law
         1. Dower - Widow takes 1/3 if issue survive, 1/2 otherwise
         2. Curtsey - Widower takes full title unless issue born
      2. Modern Law - Elective Share
3. Community Property
   1. Earnings of each spouse owned equally.
   2. Separate property
      1. Acquired before marriage
      2. Acquired during marriage by gift, devise, or descent
   3. No tenancy by the entirety.
   4. No unilateral conveyances.
   5. No survivorship.
   6. "Stepped-up" tax basis after death of one spouse.
   7. Can be conveyed to third person only as an undivided whole.
4. Migrating Couples
   1. Character of property determined by law of state of marital domicile at time of acquisition.
   2. Property doesn’t change character when moving between common law and community property states.
   3. Disposition of personal property governed by law of state of marital domicile at time of death.
   4. Disposition of land governed by law of state land is in.
   5. Surviving spouse in CP state (other than CA) may not take personal property of decedent spouse acquired in CL state.
   6. CA is quasi-CP and treats property as if couple had been domiciled in CA all along.
5. Domestic Partners [Baker]

Outline - Property - IV - Future Interests

Property (2005-2006)

IV. FUTURE INTERESTS

1. Transferor
   1. Reversion - Follows life estate or term of years
   2. Possibility of Reverter - Follows fee simple determinable
   3. Right of Entry - Follows fee simple subject to condition subsequent
2. Transferee
   1. Vested Remainder
      1. Remainderman is born
      2. Remainderman is ascertainable
      3. No express condition precedent in clause creating the remainder or the preceding clause
   2. Contingent Remainder
      1. Remainderman cannot be identified by name
      2. There is a condition precedent in the clause creating the remainder
   3. Shifting Executory Interest
      1. Like a defeasible fee, but future interest not in grantor
      2. Divests right to possession of a transferee
   4. Springing Executory Interest
      1. Most commonly seen in “future interest only” or “gap” conveyance
      2. Divests right to possession of grantor
3. Grantor vs. State
   1. If an entire estate fails to vest, there is a reversion to the grantor; but
   2. If there is simply no heir, the property escheats to the state.
4. Rule Against Perpetuities

   1. Common Law Rule

      "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."

      1. Contingent remainders must vest or fail to vest.
      2. Executory interests must become possessory.
      3. Vested remainders subject to open must close or completely vest.
      4. Not applicable to other future interests.
   2. Create, Kill, Count Method
      1. Create, after the conveyance, someone who will be eligible to claim the interest, starting as far back in the chain of title as possible.
      2. Kill everyone who was alive at the time of the conveyance
      3. Count for 21 years to see if the interest has vested. If not, the interest violates the RAP and is stricken.
   3. Wait-and-See Doctrine
      1. Arose to deal with legal fictions arising from RAP
         1. Fertile octogenarian (assume that a person of any age can have a child)
         2. Unborn widow
      2. Period
         1. Common Law (21 yrs)
         2. USRAP (avg. lifespan 69 + 21 yrs = 90 yrs)

Outline - Property - III - Possessory Estates

Property (2005-2006)

III. POSSESSORY ESTATES

1. Fee Simple Absolute
   1. Largest estate; includes all rights to property
   2. Creation – "to 'A' and heirs"
   3. Heirs
      1. Issue (children and direct descendants)
      2. Ancestors (parents and direct ancestors)
      3. Collaterals (siblings, cousins, uncles, aunts, nieces, nephews)
      4. Escheat - If no heirs, property escheats to state.
2. Finite Estates
   1. Types
      1. Life Estate
      2. Term of Years
   2. Creation
      1. Life estate - "to 'A' for life"
      2. Term of years - "to 'A' for 25 years"
      3. Term of years - "to 'A' from October 5, 2005 to October 5, 2030"
   3. Future Interest
      1. Reversion (grantor)
      2. Remainder (anyone else)
3. Defeasible Estates
   1. Fee Simple Determinable
      1. Automatically ends upon satisfaction of condition
      2. Created by durational language
         1. "so long as"
         2. "while"
         3. "until"
         4. "during"
         5. "unless"
      3. Future interest - "possibility of reverter" (to grantor)
   2. Fee Simple Subject to Condition Subsequent
      1. May end upon satisfaction of condition; transferor's discretion, not automatic
      2. Created by limiting language
         1. "but if"
         2. "provided that"
         3. "on the condition that"
      3. Future interest – "right of reentry" (to grantor)
   3. Fee Simple Subject to Executory Limitation
      1. Looks like either of the other defeasible estates, but future interest is in a third party
      2. Springing - cuts off grantor
      3. Shifting - cuts off anyone else
4. Cases
   1. White v. Brown – Where language unclear as to life estate or fee simple with restraint on alienation, policy is to avoid limits on alienation, and prefer fee simple absolute.
   2. Baker v. Weedon – Where the identity of remaindermen is clear, law of waste implies life tenant may not sell property without consulting remaindermen. (Note similarity to joint tenancy.)
   3. Mahrenholz – Conveyance to transferee "to be used for school purposes only" creates fee simple determinable, not fee simple subject to condition subsequent; future interests transferable.
   4. Toscano - A conditional restriction on a conveyance creates a defeasible fee instead of a simple fee with restraint on alienation.

Outline - Property - II - Rights of Owners

Property (2005-2006)

II. RIGHTS OF OWNERS

1. Finders
   1. Terms

      Owner	A person who owns property
      Finder	A person who takes ownership of unclaimed property
      Property owner	A person who owns real property (locus in quo)
      Bailor	One who entrusts care of property to another
      Bailee	One to whom the property is entrusted (voluntary and involuntary)
      Bailment	Property that is entrusted by one to another

   2. Elements of control
      1. Intent to control
      2. Actual control
   3. Among finders The first person in time to find has first claim. [Armory v. Delamirie]
   4. Bailment - True owner may not recover from present possessor if voluntary bailee has already recovered.
   5. Finder vs. Property Owner (who is not the true owner)
      1. If attached to the land, or under the land, land owner gets it; but
      2. If on the surface of the land, finder gets it; unless
         1. Finder is trespasser; or
         2. Finder is employee or independent contractor.
      3. Note: True owner still gets preference if present.
   6. Cases
      1. Hannah v. Peel - Hannah entitled to jewelry he found on Peel’s property which Peel hadn’t known about.
      2. McAvoy v. Medina – Wallet left on table in barber shop not to be treated as “lost” so cannot be “found”. Barber now involuntary bailee.
2. Gift
   1. Elements [Newman v. Bost]
      1. Intention to make the gift (may be inferred)
      2. Delivery
         1. Symbolic – Some other article delivered in the name and stead of the thing meant to be given
         2. Constructive – Delivery of a key to a locked house, trunk, or other receptacle
         3. Actual
      3. Acceptance [Gruen]
   2. Irrevocable once made
   3. No conditions (i.e., “if”)
   4. No future (i.e., “later”)
3. Adverse Possession
   1. Terms

      Color of title	Claim founded on a written instrument or judgment or decree that is defective and invalid
      Constructive possession	Adverse possession under color of title

   2. Act
      1. Actual [Van Valkenburgh v. Lutz – Traveled path]
      2. Open and Notorious [Mannillo v. Gorski - Where true owner unaware of minor encroachment, not open and notorious]
      3. Continuous [Howard v. Kunto - Occupancy for intended seasons, and continued existence of improvements, is continuous.]
      4. Exclusive
      5. Adverse/Hostile
   3. Intent
      1. Irrelevant (Connecticut, majority) [Mannillo v. Gorski – Staircase extension]
      2. Good faith mistake
      3. Aggressive trespasser (Maine, minority)
   4. Statutes of Limitations
      1. CA = 5 yrs.
      2. NY = 15 yrs. [Van Valkenburgh v. Lutz]
   5. Tacking On – Permitted if successive occupants are in privity. [Howard v. Kunto]
   6. Disabilitites – 21-year limitation unless disability, which extends for 10 years after removal of disability.
   7. Exception: No adverse possession against federal government.
   8. Chattels - Cause of action accrues when injured party discovers, or reasonably should have discovered, the conversion.
4. Right of Exclusion
   1. Punitive damages may exceed nominal damages. [Jacque v. Steenberg Homes - $100,000 punitive damages over $1 nominal upheld to enforce right to exclude.]
   2. Right of exclusion does not extend to excluding members of governmental services, charities, and press as long as there is no behavior hurtful to others. [State v. Shack]

Outline - Property - I - Acquisition

Property (2005-2006)

I. ACQUISITION

1. Capture
   1. First in Time [Pierson v. Post]
      1. Majority - First to capture
      2. Minority - First "reasonable prospect"
   2. When custom establishes procedures for settling disputes, use custom. [Ghen v. Rich]
   3. Constructive Possession - A wild animal that frequents a property is part of that property by animus revertendi, and one who chases it off is maliciously interfering with trade. [Keeble v. Hickeringill]
   4. Rule of Increase - Possession of the offspring belongs to whoever owns the mother.
   5. Demsetz
      1. Externalities
      2. Tragedy of the commons – Nobody has an exclusive right.
      3. Tragedy of the anti-commons - Everyone has an exclusive right to common property.
      4. Freeriding problem
      5. Transaction costs
      6. Bundle of rights
2. Creation
   Physical Property
   
   1. Property in one’s person [Moore v. Regents – Plaintiff has no property right in his excised body part]
   Intellectual Property
   
   2. Trademark
      1. Anticybersquatting Consumer Protection Act (ACPA) – Cybersquatter is liable to owner of a protected mark if that person had a bad faith intent to profit from that mark. [Virtual Works v. Volkswagen]
      2. Celebrity "right of publicity" (widely recognized) – Property interest, assignable during life, descendible at death. Posner: Rooted in right of privacy.
   3. Patents
      1. 35 U.S.C. § 101 - Inventions patentable: Any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.
      2. Chemical extracts – Process for purifying naturally occurring chemical, as well as purified chemical, both patentable. [Parke-Davis (1911)]
      3. Laws of nature – Mathematical formulae not patentable; implementing or applying a formula in a process otherwise patentable is protected. [Diehr]
      4. Composition of matter – Simply rearranging bacteria is not patentable. [Funk Bros.]
      5. Living things are not patentable. [Chakrabarty – Process for producing and for disseminating bacteria is patentable; bacteria themselves are not.]
   4. Copyright
      Subject Matter
      
      1. Originality
         1. Independent
         2. Modicum of creativity
      2. Facts are not copyrightable; compilations of facts may be, if presented in an original way. [Feist v. Rural – Phone book not original compilation.]
      3. Ideas are not copyrightable. [Baker v. Selden – Text on bookkeeping methods not copyrightable.]
      4. Subject matter with limited forms of expression not copyrightable. [Morrissey – Sweepstakes rules]
      5. Where form and function inseparable, no copyright. [Brandir v. Cascade – Bike rack as minimalist art]
      Imitation
      
      6. News is not copyrightable; but there is quasi-property interest in gathered news, so interference where business profits from transmission constitutes unfair competition. [International News Service v. AP]
      7. Copyright gives right to exclude others from enjoyment, but not imitation. Right to exclude imitation is monopoly. [Cheney Brothers – Imitation of silk patterns okay.]
      8. Baird – Balance right to information and promotion of market economy.

Outline - Property

Property (2005-2006)

1. ACQUISITION
2. RIGHTS OF OWNERS
3. POSSESSORY ESTATES
4. FUTURE INTERESTS
5. CO-OWNERSHIP and MARITAL INTERESTS
6. LANDLORD-TENANT