Property II Outline
I. Discrimination in Leasing
a. Traditional model of lease as conveyance allowed landlords to exercise complete discretion in choosing its tenants (this is part of the right to exclude that comes with ownership of property)
b. Civil Rights Act of 1866 stated that all citizens have right to inherit, purchase, lease, sell, hold, and convey real and personal property
c. Fair Housing Act-banned discrimination in housing based upon race, color, religion, and national origin (subsequent amendments have extended it to gender, familial status, and handicapped status)
i. Familial Status: parents or a parent with dependent children under the age of 18
1. Why would a landlord want to discriminate against familial status?
a. Noise, inability to pay, damage issues, heightened sense of liability with younger children
i. this all affects the landlord and the potential for their income (a financial impact)
2. Reasons why Congress included familial status?
a. family doesn’t get housing
b. discouraged from renting in a particular building
c. might prevent families from educational opportunites to rent or buy in a place with better educational opportunities or accessibility
d. main policy decision deals with the health, safety, and welfare of children
e. if families are systematically deprived to access of rental places, this poses health and safety concerns that reflects on risks of the healthy development of children
f. want to encourage the integration of children of different races and economic backgrounds (this reduces racial tension)
ii. Handicap means (1)a physical or mental impairment which substantially limits one or more of such person’s major life activities (2)a record of having such impairment (3)being regarded as having such impairment (the term does not include current, illegal use of or addiction to a controlled substance)
iii. FHA: an example of federal law that has placed restrictions on the methods owners can use to find a tenant or buyer of real property
iv. FHA applies to all state and local gov, but the Act itself specifically exempts “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling”
v. Exemptionsto FHA: group homes, religious organizations and private clubs, and any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling
vi. 2 federal laws that are significant:
1. Section 2 of the Civil Rights Act Section 1982-there can be no racial discrimination for the rental or selling of real property
2. Fair Housing Action-bans discrimination in housing based upon race, color, religion, national origin, gender, familial status, and handicapped status
a. *owner cannot put out an ad discriminating in such a manner
i. when looking at an advertisement, the “ordinary reader” test is applied: where the ad suggests to an ordinary reader that a particular protected group is preferred or disrespected for the housing in question
b. *owner cannot make favorable or unfavorable terms based on any of these protected categories
c. *owner can’t misrepresent the status of the property
d. *if renter or buyer is qualified after an offer is made, landowner cannot refuse to sell or rent to the buyer
e. Landlord cannot advertise his or her own preference
d. Both Fair Housing Act and Civil Rights act discuss discrimination in housing based on race
i. However, Civil Rights Act only deals with race with regard to discrimination in housing (does not address gender, handicapped, etc. that FHA covers)
1. for example, if I am a woman, I would file under the FHA
ii. if any discrimination in housing claim falls under any of the protected classes other than race ,must file under the Fair Housing Act
II. Servitudes
a. a group of related private property interests that confer nonposessory rights in land possessed by others
i. includes easements (both affirmative and negative), profits, licenses, real covenants (affirmative and negative) and equitable servitudes
b. Easements: an irrevocable right to use another person’s land for a specific purpose
i. Affirmative easements-confer upon the holder the right to make some limited affirmative use of land possessed by another (i.e. travel over another’s land or running pipes across it)
1. gives the holder an affirmative right to do something on the land possessed by another
ii. Negative easements: give the holder the right to prevent the possessor of the servient estate from doing some act on the servient estate
1. create a right to limit the use of another person’s land
2. English courts recognize 3 negative easements: (1) right of airflow and right to light (2)right to channeled water flow (3)right to lateral support (duty not to remove support from a house on the dominant estate)
3. American courts accepted these three, and have added (5)view easements (duty not to block view), (6)solar easements (to protect access to solar energy) (7)and conservation easements (usually to pr
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2. the extent of necessity of the easement to the claimant
3. whether reciprocal benefits accrue to both the grantor and grantee
4. the manner in which the land was used prior to conveyance
5. whether the prior use was or might have been known to the parties to the present litigation
b. 4 elements:
i. the unity of ownership is severed (i.e. a common owner)
ii. the use was in place before the parcel was severed (i.e. a pre-existing or prior use)
1. some courts add that use be continuous or permanent, which means the common owner used the property in such a way that a reasonable person would expect the use to continue no matter who owned the property
iii. the use must have been visible or apparent at the time of the severance
1. most courts interpret this to mean that the uses or conditions are discoverable by a reasonable inspection
iv. The easement is necessary for the enjoyment of the dominant estate (necessity)
1. degree of necessity will be less for an implied grant of the easement
2. implied grant-the degree of necessity will be less for an implied grant of the easement because the grantee of the dominant estate can be excused for not knowing the location of a use or quasi-easement on the adjoining parcel
3. implied reservation-not as easily excused because the common owner who tries to reserve an implied easement has greater knowledge, plus she executed the deed transferring the property without reserving any easement
4. some states set a reasonable necessity standard for an implied grant and a strict necessity standard for an implied reservation
5. common definition of reasonable necessity is “reasonably necessary for the fair enjoyment of the dominant estate”
6. strict necessity mandates a finding that the owner of the dominant estate could not fairly enjoy the property without the easement
b. convenience is not a sufficient basis for implying an easement of necessity
c. courts treat implied easements based upon pre-existing use as unlimited in duration (can last forever)
