Property I Outline

Property Outline
 
v Landlord-Tenant Law
Ø Leasehold Estates
§ Term of Years
·         Lease lasts for some fixed period of time (can be pointed out on a calendar—either an actual date [Nov. 30, 2005], a familiar date [Labor Day 2005], or a specified fixed term [for 6 months from Jan. 1, 2005])
·         Notice of termination is not necessary
·         At common law—no limit to the term of years; Now—many states enact statutes that can limit the duration of terms of years
·         Death of the landlord does NOT automatically terminate the lease
¨       Landlord has a reversionary interestàthe subsequent owner would stand in the shoes of the original landlord
·         In most states: if the tenant dies, the lease dissolves (land goes back to landlord who has reversionary interest)
§ Periodic Tenancy
·         Lease for a period of some fixed duration that continues for successive periods until either the landlord or tenant gives notice of termination
¨       EX: year-to-year
·         At common law—6 months notice required to terminate a year-to-year tenancy; for tenancy less of less than a year, notice must be given equal to the length of the tenancy period
¨       NOW—many state statutes have shortened the length of notice required to terminate—ex: have permitted a month-to-month tenancy to be terminated at any time following 30 days notice
·         Be specific in the lease! Make month-to-month or year-to-year clear or there is a chance of presumption!
·         Same rules apply as in term of years when either the landlord or tenant dies
¨       Landlord diesàlease continues and successor becomes landlord
¨       Tenant diesàlease dissolves
§ Tenancy at Will
·         Tenancy of NO fixed period that endures so long as both the landlord and tenant desire
·         Tenancy ends when one of the parties terminates it OR when either of the parties dies
·         Modern statutes require a period of notice before termination: 30 days or the time equal to the interval between rent payments
§ Tenancy at Sufferance
·         Tenant remains in possession (holds over) after termination of the tenancy
·         At common law—landlord confronted with a wrongful holdover had 2 options:
¨       Eviction (plus damages)—treating the holdover tenant as a trespasser
Ø Landlord may oust tenant at any time without notice
Ø By statute in many jurisdictions, landlord may only oust a holdover tenant using the courts and cannot resort to self-help
Ø Once the landlord treats the tenant as a trespasser, the landlord cannot change his mind and try and extend the lease!
¨       Consent (express or implied) to the creation of a new tenancy
Ø Some courts say the new lease will be of the same duration as the original lease; some say the lease will last the period covered by one rent payment
§ No court is likely to hold the tenant to a term longer than one year
·         Ex: Crechale & Polles v. Smith
¨       Smith had 5 year lease. After lease expired, Smith asked to stay in the building on a month-to-month lease until he was ready to move and claims Crechale agrees orally. Crechale denies the agreement and tells Smith to either vacate or pay double rent to stay. Smith pays REGULAR rent payment and Crechale ACCEPTS and CASHES CHECK. Crechale then claims that because Smith held over, he is subject to a new 5 year lease. Smith continues to insist on the month-to-month agreement.
¨       Court says that Crechale had ONE chance to decide what to do once Smith held over. He initially tried to evict him. He cannot now try to assert his power to hold Smith to a new lease term. When Crechale accepted Smith’s rent check and cashed it he impliedly consented to the month-to-month lease.
¨       Once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-to-month basis, but fails to pursue his remedy of ejecting the tenant, and accepts monthly checks for rent due, he effectively agrees to an extension of the lease on a month-to-month basis.
§ Garner v. Garrish
·         If the landlord dies, who has the right to terminate the lease? Can the tenant be evicted by the executor of the landlord’s estate?
·         Lease reads: “for and during the term of quiet enjoyment from the first day of May, 1977 which term will end—Gerrish has the privilege of termination of this agreement at a date of his own choice.”
¨       What kind of leasehold estate is this?
Ø Tenancy at will? (lease can be terminated by either landlord or tenant)
Ø Determinable life estate (allows the interest to be terminable at the wish of either one OR the other—in this case, would be Gerrish)
·         Court of appeals held this to be a determinable life estate! The lease expressly and unambiguously grants to the tenant ONLY the right to terminate and does NOT reserve a similar right to the landlord. Must hold this way to preserve the parties’ intent!
§ What if the landlord leases to tenant for “as many years as landlord desires”?
·         Common law—considered a tenancy at will of either party
·         Restatement—considered a fee simple in the tenant, terminable at the right of the landlord, but can be sold, transferred, etc. by the tenant
Ø The Lease
§ Primary hallmark of a lease=exclusive possession for a period of time
§ A lease is both a conveyance (transfer of interest in the property) and a contract (promises given/rights made)
·         Which law governs—contract (intention based) or property (categorical rules)?
¨       Does the failure of one party to fulfill a promise in the lease void the lease as in contract law?
¨       Are covenants mutually dependent—does a material breach by one party excuse further performance by the other party?
¨       Is an implied warranty of habitability implied in a lease?
§ The statute of frauds applies in virtually every state for leases of more than one year (leases less than for one-year terms can be oral but this is risky)
§ Common law tended to support clarity (property rules); modern approach tends to focus on intention (contract rules)
v Housing Discrimination
Ø Civil Rights Act of 1866—Section 1982
§ All citizens of the U.S. shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property
·         Does NOT apply to advertisements like the FHA
·         Does not apply to religious discrimination or many of the other types of discrimination covered by the FHA
Ø Federal Fair Housing Act (FHA)—Will be provided in exam!
§ 3601: It is the policy of the U.S. to provide for fair housing
§ 3603 (b)—Exemptions:
·         any single family home sold or rented by an owner
¨       Exceptions to this exemption:
Ø Can’t use a real estate broker or use real estate services
§ Shows you are selling for economic advantage…your personal interests should be irrelevant once you make it a commercial sale.
Ø The private individual owner may not own more than three such single-family houses at any one time
§ This appears more like a job (not just an individual homeowner selling)—discrimination should not be permitted in order to further your career
Ø Limits on the number of flips—only 1 sale within a 24 month period should be allowed
Ø Can’t be in business of selling homes
Ø Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than 4 families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence
Ø Can’t use discriminatory language in advertisements, notices, etc.
¨       What explains these exemptions?
Ø Tension between non-discrimination and freedom of association (people should be able to decide who they will be renting their homes with or living with)
Ø Sentimental attachments to land—people should be able to choose who will be residing in the place where you raised your family, etc.—the govt. should not interfere
§ 3604: It shall be unlawful to…because of race, color, religion, sex, familial status, or national origin:
·         (a) to refuse to sell or rent after the making of a bona fide offer or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person    
·         (b) to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities
·         (c) to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or