Property II Attack Outline
Eminent Domain is the power of the government to force transfers of property (intentional taking, different from regulatory taking) from owners to itself (p. 942).
Eminent Domain limited to instances where:
1) The taking was for “public use;” and,
2) Just compensation was paid to the private owner.
-Public use definitions have been considerably expanded. Urban renewal projects were held to be within the concept of public use even though re-sold to private individuals because their primary purpose was to eliminate slums which is advantageous to the public.
-When the government uses the property for a public project that is clearly a “public use.” Therefore the public use requirement would not even be an issue. An issue would arise when the government takes property from A (private owner) and gives to B (another private person or entity), now there is a public use issue. There are limited incidents where the property (from A to B) could be allowed under eminent domain.
-Once the legislative branch determines that something is a public use that is the end of the discussion.
-Just compensation is the “fair market value” of the property, measured based upon the property’s highest and best use. Not the value the owner attaches to the property.)
-In the majority of states, when there is a partial taking, damages are compensated to the loss of value of the property that is left.
Landlord-Tenant Law
Tenancies (leaseholds) – 3 principal types:
1) Term of years- an estate that lasts for some fixed period of time; or
for a period computed by a formula that results in fixing calendar dates for beginning and ending, once the term is created or becomes possessory.
At the end of the duration the tenancy automatically ends. It is not terminated by the death of either party.
2) Periodic tenancy- a lease for recurring terms that renew for succeeding periods until one of the parties gives notice of a termination. (ex. To A from month to month, if notice is not given the period is automatically extended for another period.) e.g., month-to-month; year-to-year.
-Does not have to be an express agreement. Can be an agreement by implication.
-Notice must be given to terminate the tenancy. If notice is not given the tenancy continues for a succeeding duration of another period.
-The death of the landlord or tenant has no effect on the duration of a term of years or periodic tenancy, but it does on the tenancy at will.
Determining the “Period”
For purposes of determining the “period” of a periodic tenancy, the rule is:
Majority Rule: The period is determined based upon the manner in which rent is RESERVED.
Minority Rule: The period is determined based upon the manner in which rent is PAID.
Terminating a Periodic Tenancy
-If notice is not given, the duration of the lease automatically extends for an additional period.
-The question is: WHEN must notice be given in order to be effective?
-If the lease specifies a time for giving notice, the lease terms will govern (unless the court finds that the time specified is unreasonable).
-But, if the lease is silent on this point,…
-COMMON LAW RULE
Month-to-month: requires one month advanced notice, with the effective date of notice being the last day of the term.
Longer tenancies: advanced notice equal to the duration of the period, with a maximum of 6 months, with the effective date of the notice being the last day of the term.
-MODERNLY
-Most states have statutes that expressly specify termination requirements, most providing for a 30 day advanced notice requirement for a month-to-month tenancy (if the lease is silent).
3) Tenancy at will- a tenancy of indefinite duration; i.e., tenancy for no fixed period or revolving period that endures so long as both tenant and landlord desire. If one of the parties dies then the lease can terminate.
-Lease Provisions on who may terminate:
Lease is silent on who may terminate
Lease specifies that either party may terminate
Lease specifies that only L may terminate
Lease specifies that only T may terminate
Tenancy at sufferance (holdovers)- arises when a tenant remains in possession (holds over) after termination of the tenancy.
– CL gives the landlord 2 options:
i. Eviction (plus damages);
ii. Consent (express or implied) to the creation of a new tenancy.
– MODERNLY: Must check statute.
Statute of Frauds
What leases must be in writing?
-Varies from state to state
-Commonly, leases for more than 1 year
Delivery of Possession
There are two opposing views as to the obligation of the landlord to provide possession on the 1st day of tenancy.
1) American view- provide legal right to
can L sue T1 for rent?)
-There is privity of K between L and T, even if there is an assignment, unless L lets T out of the K. L is not in privity of K with T1. But after an assignment L would be in privity of estate with T1. That is what allows L to sue T1.
Assignments and Subleases (Majority Rule)
-Based on balance of the term, and balance of the property.
If T conveys all of his remaining interest in the lease (leaving no interest or reversionary interest in the grantor or assignor), then it is an assignment.
If T conveys an interest less than his own, or reserves to himself a reversionary interest in the term (lease for 1 year remaining, T conveys 11 months to T1; or lease for 10 acres, T conveys 9 acres to T1), then it is a sublease.
Assignment and Sublease – Two Types of Privity
1) Privity of Contract between L and T, based upon the lease agreement; and
2) Privity of Estate, based upon the “mutual or successive relationship to the same rights of property.”
Covenants Run with the Land include those covenants which touch and concern the land, including:
-Covenants to pay money relating to the property, e.g., rent and taxes.
-Covenants which effect the physical aspects of the property.
-Covenants which effect the duration of the lease.
-Covenants involving services and utilities, such as, heat, water, electricity.
Who Can L Sue in the Event T1 Breaches?
-T under privity of contract, and/or
-T1 under privity of estate (for breach of covenant running with the land).
Assignment and Sublease – Three forms of Lease Regarding Tenants Right to Convey Lease Interest
1) Freely assignable: No express provision limiting assignment (if a lease is silent about whether it can be assigned, then it is freely assignable)
2) Requirement for consent by L
3) Requirement for consent, but, further providing that consent may not be unreasonably withheld.
