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Property- Spring


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Identify and explain the four types of leaseholds!
Estate for years-Tenant has possession for a fixed period of time, agreed upon by the parties.
Periodic Estate- Tenant has possession for a fixed amount of time that repeats unless either party terminates the lease
Estate at will- NO definite period of time, and either party can terminate at any time
Estate at sufferance-When a tenant overstays their lease, they have this until they are evicted, or lose possession
What is a lease?
A lease is a conveyance of land that transfers possession from one person to another
What is a license?
License is just the right to use someone else’s property, it is revocable at any time.
Is lack of exclusive possession enough to find that a K is a license?
No, it is a factor to consider, but malls/shopping centers often have this provision.
Are leases subject to the SOF?
If a lease is invalid under the SOF, how will they decide the term of the lease?
Look to the negotiations (monthly vs. annual rent), type of property ( farm, residential), the words of the lease, and the parties intent. (Prescott v Smits)
What is the English/majority rule for delivery of possession?
THe LL has to deliver actual possession of the estate. Any hangers on will be their problem.
Does the RST use the English rule for delivery of possession?
Yes, but under RST 62, they give the LL a reasonable amount of time to comply
What is the American/minority rule for delivery of possession?
LL only has to deliver the right to possession. Hangers on are the new tenants problem.
How could a jury go about deciding if a LL is in breach for not delivering exclusive possession?
It would depend on the availability of substitute housing, the ability of hte LL to remove the tenant ( is it a person or a property management company), and the amount of time that the old tenant held over
What guarantees the rght to undisturbed use of the premises?
The covenant of Quiet enjoyment
Is the covenant of QE independent or dependent?
Dependent. Breach of the covenant of QE is enough to get out of the lease
What are the two ways that the covenant of QE cna be breached?
Actual or consturctive eviction
What is actual eviction?
When a tenant is physically removed from the premises in some way?
What is the common law view of the result of an actual partial eviction?
Tenant can remain in possession of the part not evicted from, and withhold all rent until rent until the partial eviction ceases
Besides the common law view what are the other two views on the duty to pay rent after a partial eviction.
RST §6.1 rejects the view of full rent abatement for any encroachment. It allows for a partial rent abatement, or the other remedies for a breach of a covenant
Other view would allow for rent termination, but only if the interference was substantial
What is constructive eviction?
When through the fault of the LL( or his successors) there is a substantial interference with the tenant’s use and enjoyment
In order for a tenant to be allowed a rent abatement b/c of constructive eviction, what must the tenant due?
They have to notify the LL of the problem first, and then move out in order for a CE claim to work.
What if the tenant knew about the interference at the time of renting the apartment?
They can not sue for the interference. LL is under a duty to notify about the problem.
What if the Beach of QE pertains only to a portion of the house?
Some courts have allowed the tenant to move out of the affected area and reduce the rent accordingly. Minjak v Randolph
What are the remedies for a breach of QE?
iii.Rent withholding/abatement
iv.Termination of the lease
Does the RST require a tenant to move out in order to get a claim of partial CE?
No,1. Rst § 6.1- allows a tenant to stay on and receive damages or employ self help methods. Argues that forcing a tenant to move out gives the doctrine limited applicability
Under the common law did the LL have a duty to repair/keep up the property?
No. Lease was more about the underlying land
What controls the condition of the premises under modern lease law?
Warranty of habitability
What defines the scope of the warranty of habitability?
Scope of the warranty varies from state to state. Some states tie the warranty to the housing codes, while others would allow for a substantial defect to cause a breach, even if it does not violate the housing code. The failure to provide essential facilities or services can also breach the code.
What can't a LL do when faced with a breach of the WOH claim?
They can not evict the plaintiff unless they have a valid economic reason to do so, AND, they can not remove the property from the market until they have made the repairs and can show a valid economic reason to do so.
What are a tenant's options for a breach of the warranty of habitability?
damages, lease termination, specific performance, repair and deduct, rent withholding/abatement/escrow
How could damages be measured for a breach of the WOH?
B.Fair rental value as repaired less fair rental value in the un-repaired condition.
C. Agreed rent less fair rental value in the un-repaired condition.
D. % reduction of the agreed rent
In order to avail themselves to the repair and deduct method what must a tenant do first?
Notify the LL and give them a reasonable amount of time to comply with the repair request
What cna a tenant use the property for?
anything that is not precluded by a statement to the LL or an express use clause in the lease. If the LL does not ask, then the tenant can do anything lawful
Under the common law waht happened to a lease when the premises were destroyed?
They were still on the hook for the rent.
what is the modern view about termination for destruction of the property?
Most courts will still enforce it , unless the unit was a part of a bigger building. But most modern lease have a clause eliminating rent if hte property is destroyed in a fire
When can a tenant remove items from the house that have become fixtures?
Ordinarily, if the fixture was used for reasons that enhance the space generally then it can not be removed. IF the fixture was used for trade purposes then, it probably can go.
What happens if the premises are destroyed before the lease is up?
Under common law, the lease is not cancelled. Most private leases include clause allowing fo rcancellation in the case of destruction (cuased by someone other than the tenant), and if there is not one court swill likely read it into Leases for units in a bigger building
What are the LL's options if the tenant has held over on the property at the end of the lease?
The tenant becomes a tenant at sufferance and the landlord can evict him as a trespasser, or hold them to another lease term, ( usually as long as the original)
What do modern courts do with holdover tenants who only stay for a little while?
If the holdover is beyond their control, then the court will usually excuse it. ( Commonwealth v Hirschfield) Some courts ahve even excused it if it is the fault of the tenant claiming that the damages were de minimis
Under the common law what did the LL have the ability to use self help to evict a tenant?
Yes, a LL could use whatever force was necessary to evict a tenant who was in default
How do modern courts deal with the LL's ability to use self help?
1.Some states allow for reasonable efforts
2.Some states only allow for a peaceable effort to regain the premise
3.The growing trend is to say that a LL can never use self help measures
4. Most states will allow self help if it is included as a possibility in the lease, but some hold it void as against PP
What is the rationale behind disallowing a LL to use self help?
It Protects against breaches of the peace and There are many quick judicial remedies available to the LL.
What are the LL's options if the tenant abandons the property?
1. Terminate the lease, 2. Let the premises sit idle and sue for rent as it comes due, 3. Retake possession and attempt to relet the premises
Does the LL have a duty to use reasonable care to protect the goods of an evicted tenant?
Not unless they ever took possession of the goods. If a third pary moves the stuff out ( as long as it does not go to the LL's space), then the LL does not become a bailor, and they would not be liable.
UNder the common law when does an assignment occur?
When a Tenant tranfers the entire remaining term of his leasehold.
Is the assignor still on the hook for rent if the assignee breaches the lease?
Yes, the assignor is considered a surety for the rent. The LL can release the assignor and if the new tenant agrees to uphold the promises in the lease, then there is a NOVATION and the assignor is off the hook
Under the common law how is a sublease created?
When a tenant transfers possession but retains a reversion.
How have courts modified the common law rules about the creation of a sublease?
Some states look to the paeties intent ( very few- Jaber v Miller), and other states allow for a sublease in the event of a full transfer as long as the T retains a right to re-enter the premises.
Does a sub-lessee have any duties to the original LL?
No, they are not in privity of estate or contract. The sub-lessor is still on the hook for everything.
What happens to the leases when a LL transfers/sells the property?
In the absence of an assignment in the sale, then privity of estate steps in and the new LL acquires the property subject to the terms of the lease.
When do the covenants of a lease not transfer to the new LL?
When the covenant is considered personal, as in the return of a security deposit.
Can a LL refuse to allow a tenant to assign their lease?
As long as there is an express covenant against the transfer, in the absence of an express covenant the assignment is freely transferrable.
How are covenants not to allow a transfer construed?
They are strictly construed. If the lease says no assignment, then the court will allow a sub-lease
How have courts modified the LL's right to refuse an assignment?
Some jurisdictions wil only allow the LL to refuse an assignment if there is a reasonable reason.
How do court's define a reasonable reason to deny an assignment/sublease?
i. Usually use an objective test looking to the new tenant’s financial history, and suitability for the building. LL can not refuse for financial gain to get more rent.
What are the protected categories under the FHA of 1968?
race, color, religion, national origin, sex, or family status
What is the first step in recovering under the McDonald Douglas standard to recover in a FHA claim?
The plaintiff has to make a prima facie case of discrimination by showing:
1. They are a member of a protected class and that it was known to the LL
2. They applied for and were qualified to rent the place
3.They were denied
4.The unit remained available
Once a P has made out a PF case of discrimination under MD, what happens?
The burden shifts to the D to show that they rejected the P for legitimate non-discriminatory reasons.
what happens if a LL can produce a legitimate non-dsicriminatory reason for rejecting a P under the MD test?
The burden shifts back to the P to show show by a preponderance of the evidence that the alleged reasons were pre-textual and not the actual reasons for rejecting the P.
What happens when there is a conflict between a con right and a housing code?
Decide if the housing code provision will substantially burden the P, if so there needs to be a compelling state interest in doing so. (attorney general v Desilets)
How is it possible for the fines levied by a city for violations of the housing code to be violative of dues process?
If they are excessive, then they could be violative of DP.
What are the traditional components of rent control?
B. Cap on rent with a built in adjustment for inflation
C.Ban on removing tenants w/o good cause
D.Maintenance requirements
E.Sometimes they include a right of succession to allow for the apt to be passed down in the family
What is traditionally exempted from RC?
New construction, luxury homes, and single family units
What are the critiques of RC?
B.RC discourages investment in new housing making the housing shortage more acute
C.Tend to benefit people who are not impoverished
D.Unconstitutional- This takings argument usually does not work if the statute allows for the LL to get fair return on the property.
When can a consent decree be modified?
If there is a change in material fact that makes enforecement unfair.
What is an easement?
What is the difference between an easement and a license?
Licenses are just limited permission to allow someone to do something on your land. UNlike an easement they are revocable at will, and do not have to be written.
What is the land that is benefitted by an easement?
Dominant estate
What is the land that is burdened by an easement?
Servient estate
wHAT IS a profit prendre?
An easement that confers the right to enter and remove timber, mineral , gas, game, or other substances from land in possession of another
What is an affirmative easement?
The right to do something on someone else’s land
What is a negative easement?
The right to stop someone from doing something on their land
What is an easement appurtenant?
Easement to use a servient estate which directly bnefits the dominant estate.
B.Usually two adjoining pieces of land
C.Legally attaches to both pieces of land
What is an easement in gross?
Easement to use a servient estate that does not directly benefit a dominant estate.
Are commercial easements in gross assignable?
C.Commercial easements in gross are freely assignable
i.Not true for non-commercial easements unless the parties intended them to be assignable
What are the ways to create an easement?
Express grant, express reservation, IMplied easement,
What are the four ways the law will imply an easement?
apparent use, necessity, proscription, estoppel
What is necessary in order to find an easement based on apparent use?
B.Relevant land must have been in prior unitary ownership
C.The use giving rise to the easement was in existence at the time of conveyance
D.Use had been long enough to show that it was meant to be permanent
E.At the time of severance the use was necessary to the proper and reasonable use of the dominant tract
What is necessary to find an easement by necessity?
The owner of a lot must divide the lot into two pieces and by the division deprives one lot access to a public road.
How much necessity is necessary in order to find an easement by necessity?
There is a SOA on this. THe RST argues for a flexible standard asking if the partiesexpected it to continue after the conveyance and looking at the following factors
1.The extent of prior use, necessity, awareness of the parties, uses for underground utilities
Other jxn's argue for strict necessity
What are the two ways a court will recognize an easement by proscription?
1. Use the AP standard.
2. Failed cexpress creation standard- Use was created pursuant to the terms of an intended but imperfectly created servitude
What are the elements of an easement by estoppel?
B.Owner allow use knowing it will induce action on the part of the P’s
C.P’s substantially changes position
D.Injustice can only be avoided by establishing the servitude
E.No requirement of deception on the part of the grantor
What are the ways to end an easement?
Expiration, consent, merger of the dominant/servient estate, prescription, forfeiture, estoppel, condemnation, necessity ends, easement by estoppel ends once the fairness of changed circumstances no longer requires the easement to continue
What determines the scope of an easement?
COurts will look to parties intent.
How do courts determine the intent of parties for the purpose of the scope of an easement.
A court may examine whether the easement was created expressly or by prescription, what changes in use might be reasonably foreseeable to the parties, what changes are necessary to achieve the purpose of the easements under modern conditions.
Can a person get an easement by necessity if their own actions created the necessity?
NO, Schwab v Timmons
What is the shifting public use doctrine?
1.Shifting Public Use doctrine- The Usage granted was for a public use, and the new public use is a foreseeable extension of the original grant.
What is a conservation easement?
Way to stop someone from harming/developing their property in a certain way. Allows LO’s to write off a charitable donation while getting them to conserve the land
What is a covenant?
A promise to do or not to do something relating to land
What is the difference between a negative easement and a restrictive covenant?
i.Negative easement is a non-possessory interest in land
ii.Restrictive/negative covenant is a contractual promise related to the use of land
IN order for a real covenant to run with the land, what must be present?
1. In writing for every transaction.
2. Original covenanting parites intended both the burden and the benefit to run with the land
3. Original covenanting parties were in oth horizontal privity and vertical privity
4. Covenant must touch and concern the land
What must be present in order for a court to find an equitable servitude?
Notice of the covenant at the time they ourchased the land, original covenanting parties must have intended the benefit/burden to run with the land, touch and concern the land.
What are the remedies avaiable for the breach of a real covenant?
What are the remedies avaialble for the breach of an equitable servituds?
Specific performance, and negative injunction
wHAT IS horizontal privity?
Exists when the transaction of which the promise is a part includes a a transfer of an interest either in the land benefited by or in the land burdened by the performance of the promise. Cna be found when the C exists in a conveyance of land, a lease, when the aprites were in co-ownership, or when one party owned an easement over the party's land
What are the three views of the importance of horizontal privity to the creation of a real covenant?
1.HP is required for the benefit and the burden to run
2.HP is required For the burden, but not the benefit
3.HP is not required for either
What is vertical privity?
Where the party seeking to enforce the covenant against whom it is to be enforced are successors in title to the property of the covenantee and covenantor respectively.
IN order for there to be VP what must have happened?
A transfer of the parties entire estate (if they had a FS they have to transfer a FS)
When can a court find a negative equitable servitude in the absence of a writing?
How do courts treat covenants contained in the creating document for a common interest development?
It will get a striong presumption of validity. The presumption is less for subsequent decisions of the condo board
How does a covenant end?
abandonment, merger, expiration, equitable defenses to enforcement (laches, equitable estoppel, unclean hands/acquiescence in other breaches), changed conditions (most common defense- states that the reasons for the C no longer exist)
What is nuisance?
What are the two types of nuisance?
Private and public
What is a privat nuisance?
- Non-trespassory invasion of another’s interest in the private use and enjoyment of the land
How does a court determine if there is a private nuisance?
Balancing test between the reasonableness of the invasion and the utility of the behavior?
What are the factors in the gravity of harm test under a private nuisance regime?
B. Extent of the harm
C. Character of the harm
D. Social value of the use or enjoyment
E. Burden of the harm
What are the factors in the untility test for privat nuisance?
B. Social value of the purpose
C. Suitability of the conduct
D. Impracticability of preventing or avoiding the invasion
What are the two ways to show a nuisance per se?
B. The activity is a nuisance at all times, under any circumstances, and in any location
C. The nuisance is in violation of the law
Does an activity have to be illegal in order to be considered a nuisance?
What is a public nuisance
Can a court find a public nuisance for an activity that complies with the law?
When can a private citizen bring a case for a public nuisance?
When they are specially affected by the nuisance.
What are the two ways to find a nuisance per se?
The activity is a nuisance at all times, under any circumstances, and in any location
and, nuisance is in violation of the law
Who can bring an action for nuisance?
Any person whose land is iterfered with. They do not have to own a fee simple.
What does it mean to come to the nuisance?
When you move to an area that is already burened by a nuisanc you can not claim that it was a nuisance, but if the use is no longer suitable for the neighborhood then the court may find it a nuisance
What enables cities to enact zoning ordinances?
The city derives its power to aone from a zoning enabling act passed by the state legislature. The ZO is limited by the scope of the enabling act.
What is a conprehensive plan?
It is a guide for development within the city that state policies and guiding principles. It is made by a planning commission. In some instances it can be inferred from the actions of the ZB and certain documents that reflect the plan of the board.
What is the limit on the power to zone?
There must be a reasonable and non-arbitrary relationship between the regulation and the cities police power to regulate the HEALTH, SAFETY AND WELFARE OF THE PUBLIC
What is the two part test to decide if a ZO is a reasonable/non-arbitrary use of the police power?
1. Is the goal of the ordinance a reasonable and non-arbitrary goal that promotes the health, safety and welfare of the public.
2. If the end is legitimate, are the means of achieving the ends reasonable and non-arbitrary
What are the two kinds of challenges to a zoning law?
1. Facial- rare challenge to the entire ordinance
2. as applied challenge- JUst invalid as applied to the P in the case
What is an non-conforming use?
It is a use that is not valid under the new zoning ordinance, but is allowed to continue in order to avoid a takings challenge
Does a Non-conforming use run with the land?
What kind of limits are places on a non-conforming use?
City may prohibit expanding a non-conforming use beyond the precise space where it is located, or an ordinance may stipulate that NCU if destroyed by fire it cannot be rebuilt, or a NCU may prohibit change to another non-conforming use.
What are the 4 ways to get rid of a non-conroming use?
1. Abandonment
2. Discontinuance
3. Amortization
4. Voluntary or involuntary destruction
What is a special exception?
USe allowable where certain specific conditions specified in the ZO are met. Board determines if the SE should be granted
What is a variance?
An exception to a ZO that is granted b/c the ordinance would cause unnecessary hardship based on the nature of the property.
Will a variance be granted if the hardship was self inflicted?
What are the two types of variances that can be granted?
1. Use restriction- Variance that allows a different use than that which is allowed under the ZO. These are harder to get, b/c it is more destructive to the master plan and is in effect an amendment.
2. Bulk restriction- Variance based on a physical characteristic of the lot (height, set back, area)
What kind of presumption is afforded to the decisions of a zoning board?
They are afforded a presumption of validity. In order to overcome the high preference of validity, they must show that an ordinace totally excludes a legitimate use. Can be either de jure ( by law) or de facto ( in reality ) exclusive.
What is a Planned USe Development?
In a PUD the developer with a large tract of land can mix uses, and ignore specific lot and density requirements IF THE OVERALL DENSITY OF THE DEVELOPMENT DOES NOT EXCEED THAT OF A STANDARD LOT BY LOT DEVELOPMENT
Can a city make zoning restrictions based solely on aesthetic reasons?
Under the common law the courts did not allow the police power to reflect aesthetic goals solely. In recent years, many state courts heave held that cities can zone for aesthetic reasons. SOme courts have limited aesthetic ordinances only when it offends the sensibiliites of the average person and tends to depress property values.
What is a floating zone?
Zone provided in the ordinance to which no land is assigned on the zoning map until a landowner makes such a request and granted that zoning classification.
What is a zoning amendment?
Usually a zoning enabling act includes a provision allowing for the ZO to be amended. Zoning amendments are presumptively valid.
How can a zoning amendment be shown to be invalid?
The burden is on the challenger to show that the zoning amendment is not in accordance with the comprehensive plan
What is spot zoning?
An amendment not in accordance with the comprehensive plan, that applies to one lot. It is usually considered unlawful.
What is conditional rezoning?
LO is told that if he does certain things he will be conditionally rezoned, but it is not a binding promise
What is contractual rezoning?
City makes an enforceable promise to rezone if the actions are performed
When is a growth control ordinance valid?
The end must be legitimate and a reflection of a comprehensive plan and
The means are not exclusionary of one certain group of people
When will a court set aside an agency action managing land uses?
If it is not rational, based on relevant factors, or within the authority of the court.
What are the two things that must be present when a gov't exercises eminent domain?
THe taking must be for a public use and the gov't must provide just compensation
Traditionally what are the two views of the public use aspect of a takings claim?
1. Broad/majority view-If the use is co-extensive with the police power ( is related to the health, safety, morals of the community) then it will qualify as a pulic use
2. Narrow/majority- THe use must be one that hte public actually uses,a nd the gov't must retain some control over the property
What did the kilo case consider a public use?
Any aking that incresase the tax revenue int he community will count as a public use
How is just compensation usually measured?
Fair market value( What a willing buyer would pay to a willing seller)
How do courts justify the discrepancy between subjective value and the FMV?
It is a burden of common citizenship.
What kind of demand is considered when figuring FMV?
General demand, not the demand from a special value to the owner arising from the adabptibility to his particular use
When does the court not use FMV to determine just compensation?
1. When the FMV is too hard to calculate b/c the property is rare/unique thus making it hard to calculate a value
2. If application of FMV would result in manifest injustice
3. Court may order cost of replacement if the disrupted service is one that must be replaced ( by statute) thus avoiding a possible windfall
What are the two types of takings?
Physical and regulatory
When can the gov't pass a regulation that completely and permanently devalues the property and not pay for the devaluation?
1. To abate a nuisance
2.Commercial use of the property
What is the Pennsylvania COal standard?
Property may be regulated to a certain extent, but if the regulation goes too far, it will be recognized as a taking
What are the three parts of the Penn Station test?
1. Reasonable investor expectations
2. Economic impact
3. Character of the gov'ts actions
Court will balance all three to decide if there has been a taking
What are the two kinds of categorical takings?
1. Actual physical invasion
2. When the regiualtion has the effect of completely diminishing the value fo the property to zero and the devalued property is not a commercial enterprise
When would the court apply the Penn Central test?
When there is a regualtion that does not completely devalue the property, but diminishes the value
Does IP count as property for consideration under the takings clause?
Yes, but the PennCentral test must be applied.

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