Property Review Outline

Property Rights Bundle of Sticks

Use / Exclude / Possess / Transfer

Definitions of Property
Real Property (real estate/realty) is land and improvements attached to land. (House) Personal Property (personalty/chattle) is all property other than real property. (iPod) Fixture is personalty that has been permanently attached to real property but that could be removed. (Chandelier) Tangible Personal Property is physical stuff (Luther VandRoss CD) Intangible Personal Property is an asset that is not physical but still has value (Luther VandRoss Song)

Conceptualization & Acquisition of Property

DISCOVERY, CONQUEST, SEIZURE, & GRANT
Rights of Discovery Christian-based nation discovering new land that is inhabited by non-Christian savages gains exclusive title (no others may own) to the land and legal possession of the land. This is only valid if the discovered land is consummated with possession (colony) in a reasonable time. Right of Occupancy Occupancy gives the indigenous tribes the right to USE and POSSESS the land they are on. Occupancy is forfeited by purchase or conquest by the discoverers. Exception to Rule of Discovery! o Johnson v. McIntosh purchased land from an Indian Tribe. subsequently received the same land under a grant from the U.S. Government

CAPTURE
Rule of Capture o o Intent to capture Deprive the animal/thing of its natural liberty (Trapping, mining, mortal wounding, etc) Control of animal/thing Property 1

Pierson v. Post Post, along with his pack of dogs and hounds, was hunting a wild fox on the beach. Pierson, who knew that Post was pursuing the fox, stepped in, killed the fox and carried it off.

Riparian Rights Eastern States = reasonable use doctrine (water use must not create hardships for other users). Western States = prior appropriation (first person to make beneficial use of water gains vested right to continue that use). Natural Resources First-in-time, first-in-right doctrine in place. If landowner pulls gas/oil from a common reservoir between two land boundaries, it is legal so long as he does not drill laterally into other persons land. Rule of Capture in effect.

CAPTURE EXCEPTIONS
Custom o Customs upheld for specific industry interests (whaling) where the (THIS IS ALL POLICY INFORMATION): 1) Customs application is limited to the industry and those in the industry 2) Customs is recognized by the whole industry 3) Custom requires the first taker to use the only act of appropriation (controltaking) that is possible 4) Custom is necessary to the survival of the industry 5) Custom works well in practice Custom is not upheld in sporting endeavors (hunting) Ghen v. Rich Ghen shot and killed a whale in the open sea. Several days later, Ellis found the whale washed up on a beach. Ellis sold the whale to Rich at an auction. Rich then harvested the blubber and benefited from the oil.

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Ratione Soli Land owner owns all animals / embedded resources on his property via constructive possession (fulfills capture rule even though elements are not established). Animus Revertendi If an animal is domesticated and has a tendency of returning to an owners land, it may not be killed in public areas. This is subject to a reasonable person knowing whether an animal would return or not. Out of Natural Habitat Circus animals that clearly do not belong are not fair game. Malicious Interference Competition is important to industry, but courts hold against malicious interference of anothers livelihood. o Keeble v. Hickerngill Keeble (P) owned land which contained a duck pond. He put decoys in the pond for purpose of attracting wild ducks. Hickeringill (D) approached the pond and discharged his shotgun several times. By doing this, Hickeringill Property 2

scared the ducks away from the pond and deprived Keeble of the economic benefit that he enjoyed in them.

LOST/MISLAID/ABANDONED PROPERTY
Finder One who [1] takes control of the lost property and [2] has the intent to maintain possession of the property. Relative Title Better property claim to all people except the TO How do you tell if property is LOST? o o Intent: TO accidentally and involuntarily loses Location: Considered lost if it is in a location that no rational person would deliberately leave it (big indicator here is if it is on the floor) Possession goes to finder Armory v. Delamire Armory (P), a chimney sweepers son, found a jewel. He took that jewel to Delamirie (D), a goldsmith, for appraisal. Delamiries apprentice, under the pretense of weighing the jewel, removed the stones from the setting. Delamirie offered Armory a meager sum for the stones and Armory refused. Delamirie returned the setting and kept the stones. Armory an action in trover (common law action for the recovery of damages for the conversion of personal property).

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How do you tell if property is MISLAID? o o Intent: TO intentionally placed property in a location but forgot to remove it Location: Considered mislaid if it is in a location that suggests the owner will return for it (table, counter) Possession goes to locos in quo owner (shop keeper, etc) McAvoy v. Medina Transient customer left wallet on barbershop counter, court holds for barbershop owner in interests of customer more likely to return to barbershop to find wallet

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How do you tell if property is ABANDONED? o o Intent: TO voluntarily relinquishes dominion and rights to property Location: Considered abandoned if left in a place and circumstances that allude to TO abandoning Possession goes to the finder. (Desk on curb)

LOST/MISLAID/ABANDONED PROPERTY EXCEPTIONS

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TO Returns Lost/Mislaid property are returned to the TO despite Finders claim Trespassers Automatically DQd as Finders no rights gained Employees Must turn in all found property to their employers o Some states allow employees to keep property found in public areas

Private Areas All objects found in private areas belong to the landowner Residences Property found in residences belongs to residence owner PROVIDED THEY LIVE THERE
o Hannah v. Peel Army sergeant allowed to keep brooch as finder since house owner never lived there

Embedded Objects Nearly always belong to the landowner o Treasure trove is technically finder, but most courts favor the landowner

GIFTS
Newman v. Bost Fleshes out nearly all elements of gifts. Most importantly the mantra that if it can be delivered, it must be delivered so the TO feels the wrench of delivery Inter vivos A gift made while the donor is alive. o Intent (to gift) Donor must intend the gift o Intent is not satisfied by just delivery. Must be generally expressed.

Delivery Donor must deliver the gift Delivery maxim: If the property can be delivered it must be delivered. Donor should feel the wrench of delivery to know they cannot take it back

Acceptance Recipient must accept the gift Once recipient accepts gift, it is complete & irrevocable (i.e. no take-backs)

Constructive Delivery Keys are generally given to access property and generally suffice as a way of delivering the property (by giving the recipient access to the property or means of exercising possession and control) without actually handing the property over ONLY VALID IF DELIVERY IS IMPRACTICABLE/IMPOSSIBLE o Cars, locked property, or when the recipient is already in actual possession of the property such as a bailee or employee

Symbolic Delivery Allowed when physical delivery of the object is impractical or impossible. Occurs when the thing delivered stands in the place of the property (i.e. Property 4

Picture of large chest of drawers / delivery of one item + written inventory of similar items) ONLY VALID IF DELIVERY IS IMPRACTICABLE/IMPOSSIBLE o o NC does not recognize symbolic delivery Life Insurance Policy not held as delivered even though the bureau it was in was symbolically delivered because the life insurance policy could have actually been handed over (Newman v. Bost)

Gift Promises Gifts cannot be promised because there is no delivery of the gift. A gift promise is legal unenforceable and just gratuitous. Causa Mortis A gift made while the donor is alive, but fears their impending death . The cause of their expected impending death is subjective to the donor, but there must be some form of objective illness, disease, or peril prompting the expectation (minor surgery, threatened assassination, or perilous journey taken voluntarily do not count). o Donor delivers the chattel with the intention that control of chattel is immediate, but absolute when donor dies. Gifts cannot be subject to condition precedents (i.e. recipient does not get gift until owner dies) Donor must die from same peril that caused them to give the gift for the gift to be valid Some jurisdictions allow the donor to revoke the gift if they recover Gifts causa mortis are subject to the claims of creditors when other assets of the donor are insufficient to repay debts

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ADVERSE POSSESSION THEORY / ELEMENTS

Definition: Process through which a person who uses property for a statutorily defined period of time becomes the owner of the property and defeats all rights of its true or rightful owner, even if the latter had legal or record title. AP Statutes Each state has set up a statute dealing with AP and the duration needed to achieve it with and without color of title AP Theory 5 theories govern why AP exists the way it does o Sleeping Theory Courts view that if a property owner sleeps on their rights to exclude others from their property then they lose their property rights Use of Land Theory AP rewards the person who uses, works on, or improves property for a long time Evidentiary Theory Evidence decays as time passes and stale claims to property are dubious. Actual possession is easy evidence of potential ownership and deed records are not always reliable Property 5

Structural Theory AP facilitates the efficient transfer of property by forcing owners to use it or lose it, thus potentially granting land to users at lower cost than would otherwise be possible Status Quo Theory AP preserves the status quo. After the statutory period, ejecting the adverse possessor would cause more harm than good and thus is not useful

AP Elements 6 Elements of AP (conjunctive all must be met for AP to succeed) o Actual Possession the AP must actually be in possession of the property Were the acts of possession done like a TO? AP needs to prove possession. While proof is state to state, some things that help include: paying taxes on land, building a house, farming, fencing, cutting timer, hunting, fishing, selling the land, renting it, etc may all prove possession but also may not solely. Generally the AP owner only gains ownership of property they occupy (and they bear the burden of proving the boundaries of their possession), unless they claim the land under color of title (faulty deed) where they get it all via constructive possession An exception to the color of title granting constructive possession is when the TO actually possesses a part of the described land this limits the AP claim to only what they occupy

Van Valkenburg v. Lutz Establishes elements of AP, strikes out gardening or storing junk as evidence of actual possession

Exclusive AP can be the only person on the claim Was the possession exclusive of the TO? AP holds land to the exclusion of all but the TO AP goes by chronology, so that an earlier AP owner can oust newer AP claimants

Continuous the AP must use the property like a TO Was the possession duration continuous as would a TOs? Need not be constant, just used the way the property normally is, i.e. seasonal property

Hostile / Adverse the property must be under a claim of right/title

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[1] Majority/Objective View: AP uses occupied property w/out TOs permission, and inconsistent with TOs legal rights. OBJ Test (State of Mind Irrelevant) Manillo v. Gorski Gorski made improvements in 1953 including a concrete walkway extending to the front and rear of the property. That walkway encroached upon Mannillos lot by 15 inches. Gorski had built the walkway with the mistaken belief that the property belonged to her. [2] Bad Faith View: APs subjective intent must be to possess the land they know is not theirs. [Issue: In boundary disputes, there can be AP without bad faith or knowing they dont own it AP could really think they own the land] SUBJ Test (State of Mind Relevant) [3] Good Faith View: APs subjective belief that he owns the land in question may be permissible as AP through mistaken belief SUBJ Test (State of Mind Relevant)

Open / Notorious the AP must be using the land in a way that puts TO on notice Did AP act in a way that the TO would know his land is being possessed? Caves are generally not open if the entrance is not readily knowable to an owner

Statute the AP must possess the land for the statutory period Time starts when AP enters property

THINK An ECHOS or A Hooker On Every Street Corner for the elements

ADVERSE POSSESSION MECHANICS

AP Mechanics Basically exceptions and special rules o Tacking Requires Privity [1] Time Adding the time of anothers AP through Chain of Title (voluntary xfers) [2] Land Claiming more land than in deed Howard v. Kunto Tacking allowed for mistaken plots of land to be claimed in AP for new owner given the purchase of land as privity to the old owners AP time

Privity A relationship between two AP claimants (reasonable connection) [1] Colorable title document that describes the area possessed Property 7

[2] Next AP is heir of first AP Xfer does not need to be formal or express, but must be VOLUNTARY Someone who ousts the AP by threat of force of other means does not have privity with the AP

Disabilities Mechanic through which a TO can retain land despite a valid AP claim Commonly recognized disabilities include: [1] Age [2] Mental Illness [3] Incarceration [4] Military Service Disability only counts if it exists at the start of the AP claim cannot tack disabilities TO can continue to own land until the disability goes away, after which the statute defines how long they have to eject the AP. The time associated with the disability is said to be tolled because it runs past the normal AP S/L so long as the disability exists TO gets longer of the S/L time or disability time, whichever comes first (i.e. disability falls at year 5 of the AP claim and the statute only gives them 10 years, they would be able to hold the land for the entire 20 year AP S/L in this jurisdiction) REMEMBER TO WATCH S/L TERMS CAREFULLY!

BOUNDARY DISPUTES
Policies o Repose Law should not tinker with well settled and long-held understandings of parties involved Estoppel Representations by one party mean everything if accepted Adverse Possession Some boundary disputes are governed under AP (specifically the Open and Notorious / Hostile elements), but not all have to be

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Boundary Disputes o Agreement Both parties come to an agreement as to where the boundary line exists Must show both parties were initially uncertain about boundary line (can be in dispute) Some form of agreement must occur (oral or written) Result must be a taking and relinquishing of property in respect to the agreed boundary

Acquiescence Passive acceptance of a boundary line Property 8

Perhaps no explicit agreement, but a long recognized and accepted line exists Silence to another owners building of a fence can = acquiescence

Estoppel One owner makes representations about where they think the boundary line is located Owner 1 (O1) erroneously represents to Owner 2 (O2) the boundary and O2 builds a fence, building, or some relatively expensive thing in reliance on O1s representation O1 in this case is estopped to deny the boundary if O2s building encroaches on the true boundary O2 must not know the true boundary when they build in reliance of O1 Reliance must lead to substantive and costly change, or a prospective buyer who purchases the land in reliance of O1s boundary representations THE RELIED-UPON BOUNDARY BECOMES THE ACTUAL BOUNDARY court may require the landowner that encroached on the original boundary to pay compensation, but the line is effectively changed on the deeds

Improvements o Mistaken Improver A landowner who improves upon their land and mistakenly encroaches on anothers land Intentional Encroachment A landowner who improves upon their land and knowingly allows the improvement to encroach Remedy In both these cases, the court will generally treat it as a boundary dispute governed by AP laws, with the special provision that the boundary line can just be redrawn and the owner that gains must compensate the losing owner for the land

Estates
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PRESENT INTERESTS
Possessory Estates Fee Simple Fee Tail Words of Limitation
and heirs / nothing and the heirs of his/her body

Nature of Interest
Unlimited Passes to bloodline

Duration
No ending Inherently Limited Ends Naturally

Rights
Unlimited Cannot sell, give away, or devise right of possession after death Cannot sell, give away, or devise right of possession after death Cannot sell, give away, or devise right of possession after lease

Life Estate (pur autre vie) Term of Years

for life for the life of X Dates, Term, Period

Right to possess during named persons lifetime Right to possess during lease

Inherently Limited Ends Naturally Inherently Limited Ends Naturally

DEFEASIBLE ESTATES
Distinguishing Words FS Determinable
Until So long as While During Unless

Distinguishing Punctuation
Limitation is placed BEFORE the punctuation mark signaling the end of the description of As estate O to A until B marries, then to B

FS Subject to Condition Subsequent

But if Provided that On condition that However

Limitation is placed AFTER the punctuation mark signaling the end of the description of As estate O to A, but if B marries, then to B

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FUTURE INTERESTS
Estate
Fee Simple Absolute FS Determinable

Words of Limitation
and heirs / nothing Until So long as While During Unless But if Provided that On condition that However and the heirs of his/her body for life for the life of X Dates, Term, Period

Future Interest GRANTOR

None Possibility of Reverter

Future Interest THIRD PARTY

None Executory Interest

FS Subject to Condition Subsequent (Executory Limitation in future) Fee Tail Life Estate (pur autre vie) Term of Years

Right of Reentry

Executory Interest

Reversion Reversion

Remainder Remainder / Executory Interest Remainder

Reversion

REMAINDERS
Future: Remainders wait patiently for the previous estate to conclude, and then immediately move into possession upon termination of the prior estate. Possessory: Remainders are capable of becoming possessory estates, but it is not certain that they will. Vested Remainder Ascertained person (born, identified) AND not subject to a condition precedent. Classes may be open (such as to As children when A is still alive with 1 child -> A may have more children!) o O to A for life. A is an ascertained person, no condition precedent.

Contingent Remainder Unascertained person OR subject to a condition precedent -> located in the description of the estate and must be satisfied before interest becomes possessory.

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O to A for life, but if A goes bankrupt, to B and her heirs. Ascertained people, but condition precedent.

Executory Interest Cuts short the previous estate. o O to A until A graduates from Elon University, then to B A has a FS Determinable, B has an executor interest O to A for life; however, if A sells alcohol, then to B A has a LE Subject to Exec. Lim, B has an Executory Interest (because it cuts short As LE) O to A for life or until B is 25, then to B A has a LE Determinable, B has a vested remainder (because it occurs naturally at the end of As LE)

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Concurrent Ownership
CO-OWNERSHIP
Tenancy in Common Creation Conveyance of a property in general to 2+ people TiC is presumed Joint Tenancy to A and B, as joint tenants with a right of survivorship RoS means the surviving tenant gets the entire property Unities Possession of the entire property Fractional ownership owners need not have equal share Possession of the entire property Interest = to others Time of acquisition Title by same deed Alienability Can inherit, devise, inter vivos transfer Dissolution One tenant can unilaterally break the TiC Sever by: Kind, Allotment, Sale Cannot be inherited or devised (RoS defeats this), but can be inter vivos transferred One tenant can unilaterally break into a TiC Sever by: Kind, Allotment, Sale Mortgage does not break in majority of jurisdictions Lease does not break in majority of jurisdictions Divorce can break property into TiC Sever by: Voluntary partition, Divorce, Homicide

Tenancy by Entirety

Conveyance to a H and W in a state that recognizes TBE Includes RoS

Possession of the entire property Interest = to others Time of acquisition Title by same deed + Marriage of tenants

Cannot be inherited or devised (RoS defeats this), can only be inter vivos transferred if both parties agree

Waste: Co-tenants owe a duty not to commit waste to the property. o Affirmative is any structural change made to the estate that intentionally or negligently causes harm to the estate or depletes its resources, unless this depletion is a continuation of a pre-existing use. Exceptions: Open mines doctrine, Timber, Husbandry (raising cattle) Property 13

Permissive is the failure to maintain the estate, both physically and financially (failure to maintain ordinary repairs, pay taxes, pay interest on the mortgage). Ameliorating is an improvement to an estate that increases value. Common Law: No improvement allowed Modern Law: Improvements that increase value allowed. Other tenant must pay if they: 1) Didnt object 2) Didnt know but the change improves value

BREAKING CO-OWNERSHIP
Partition in Kind: Breaks the property up in pieces and divides between the tenants. Courts favor PiK when it is practicable for policy reasons (land is special, forced sales are not always good for tenants) o Owelty: A sum of money used to balance the difference when a PiK is used and the value of each part is not equal. The tenant that gets the land pays off the tenant who does not get the land or the same amount of land per value.

Partition by Sale: Forced sale of the property with proceeds split by the % ownership of the tenants (if JT/TBE tenants, they both get 50% - if TiC tenants this is where fractional ownership comes into play) Partition by Allotment: Court awards full ownership of the land to a single owner or subset of owners, and orders them to pay the person(s) who lost ownership for the interest awarded. Ouster: One tenant refuses access of another tenant. Ouster must then pay the ousted tenant rent for the secluded property. o o Ouster: Must make ousting known Oustee: Must demand access to property (cannot just ask for access)

Accounting: Used in a lease situation. Tenants cannot bar each other from leasing their interest in the property. Dissenting cotenant can sue for a share of the rent however, as they have possession of the whole. Mortgaging a JT: o o Title Theory: Title transfers with the mortgage, so the JT is broken into a TIC Lien Theory: Title remains with the JT who mortgages their interest and the JT survives Property 14

Common Law (TBE)

MODERN TBE ISSUES
Married Womens Property Act (MWPA) and TBE: o Group II States (Equal Rights) o Either H or W have equal power to xfer rights Subject to nondebtors RoS

Group III States (Equal Disability MAJORITY) Neither H nor W can convey Neither able to alienate RoS

Benefits of Common Law o Tax breaks, TBE, Elective/forced share

Forfeiture & Innocent Owners o o o Federal Tax Lien may attach (Federal Tax Law decides whats property) Bankruptcy Does not attach if per state law Forfeiture Application: o o Property used in a crime Property owned by defendant

JT: Forfeiture = Severance into TIC TBE Property used for criminal activity (Spouse survivorship interest is forfeitable) Martial home unavailable as forfeiture property

DIVORCE
How Courts Divide o o Equal Division: Everything is split 50/50 Equitable Division: Courts can decide what they think is fair Can divide ALL property Property 15

Can divide all property gained in marriage

TBE becomes TIC or JT, depending on how court divides

What is Divided o Before Marriage assets can be split depending on jurisdiction or prenuptial agreement During Marriage earnings and communally acquired property After Marriage assets may be split in some instances (future earnings)

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Examples of Divisible Assets o Celebrity status / Licenses / Business built in marriage / potential gain from a degree / professional goodwill (reputation / the future business you will gain) / Rent / Earnings / Profits (like a corporation)

Alimony: ALIMONY NORMALLY GRANTED UNTIL THE NON-BREADWINNER CAN RE -ENTER THE WORK FORCE AND BECOME SELF -SUFFICIENT

DEATH (WIFES DOWER)

Real Property o Wife gets 1/3 life estate if property is: o Inheritable (Not JT, not Life Estate) Freehold Estate

Inchoate Interest: During Life Creditor takes subject to dower unless released

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Terminated by divorce Attached to all real property

Personal Property o o Wife gets 1/3 if there are children (issue) Wife gets if there are no children (issue)

DEATH (HUSBANDS CURTESY)

Real Property o Husband gets 100% life estate Property 16

Inheritable (Not JT, not Life Estate) Must be Freehold Estate

Inchoate Interest: During Life Creditor takes subject to dower unless released

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Terminated by divorce Only attached if issue were BORN alive

Personal Property o Husband gets everything

DEATH (STATUTORY ELECTIVE SHARE)

Rules of Forced/Elective Share o o transfers to spouse regardless of what is in will Only for spouse

Options to Defeat Forced/Elective Share o o o Own property in JT Convert JT to TIC and devise Inter vivos gifts

COMMON LAW MARRIAGE

V.

DOMESTIC PARTNERSHIP

Elements of Common Law Marriage o o o 1) Intent Must intend to be married 2) Hold out in Public Must present the couple as married 3) Time Period Must cohabitate for the statutory period

Non-CLM States (Majority) o o o Sole remedy for non-married couple is in contract law Lack the same rights as married couple ALI advocates test of factors to establish cohabitating couple, then dividing by MP laws Property 17

Federal DOMA allows states to reject marriages of same-sex partners granted in other states

Community Property
What is Community Property: o o o o Property acquired during the marriage Rent Earned Wages Earned Profits from a Business

Does Not Apply to: o o o JT property (if dead spouse held with non-spouse JT) Life Insurance proceeds outside of the estate Lifetime Gifts Set aside if intent was to defeat elective share (SHAM GIFT) Set aside if Donor Spouse retained control (via revocable trust)

CP v. JT/TIC Fundamental differences include: o o CP can only exist between H+W JT/TIC can exist between anyone CP spouses cannot convey their share (without consent). TIC/JT can unilaterally break/convey CP spouse has power to dispose via will at deal. Intestate= Auto surviving spouse or descendants CP receives stepped up tax basis at death (what it is worth at death). JT only steps up the dead partys half

Migrating Couples Original classification of property persists wherever couples go, unless both parties agree to change classification How to Split Communal Property: o Divorce CP states follow the same Common Law Divorce rules (Equal or Equitable split) Death CP does not give surviving spouse an elective share to defeat will (GO THROUGH IR/T or PR)

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(Death) Inception of Right/Title Character of property is determined at the time spouse signed the contract of purchase and gained title (whether before marriage or after) and then takes into account communal assets afterwards. (Death) Pro Rata Community payments buy in a pro rata share of the title. 1) Figure out the amount paid before and after the marriage 2) Divide each amount by the total amount paid and assign %s to before and after 3) Multiply the %s to the total value of the property, figure out each side 4) Divide the community side by 2 5) Address the CALL OF THE QUESTION

(Death) Pro Rata Example: 50k policy, 10k total premiums. 3k paid by husband before marriage, 7k paid with communal assets. Son is the beneficiary. 1) Amount paid before: 3k Amount paid after: 7k 2) Before: 3k/10k = 30% After: 7k/10k = 70% 3) Before: (0.3)(50k) = 15k After: (0.7)(50k) = 35k 4) After: 35k / 2 = 17.5k 5) CALL OF THE QUESTION: How much does the son get? Son gets the Husbands 17.5k share of community property case + Husbands 15k before marriage = 32.5k

Landlord-Tenant
TYPES

OF

LEASES

Term of Years o o o o Specified ending term (week, month, year(s)) to T for 5 years Terminable by event / condition, may have unilateral power to terminate No notice must be given if leaving at the end of term

Periodic Tenancy o o Periodic term (month to month, year to year, week to week) to T, starting on July 1 with month rent of $500 Property 19

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Terminable by unilateral party Express notice is required to terminate Common Law: 1 period in advance up to 6 months in advance for a year Modern Law: 30 days in advance If given during a period, does not become effective until end of next period

Tenancy at Will o o o o o Indefinite term to T for law school, paying me as he can Termination by any party, or on death Implied when T permitted to move in before lease starts / LL and T negotiating K No notice required to terminate

Tenancy at Sufferance o o o Not a true estate! Just wrongful occupancy that circumvents adverse possession Occurs when a T enters into valid lease and holds over past end of lease term LL may elect to evict + recover damages OR consent to continued possession and make T liable for another term Holdover as Trespasser: LL does not need to give notice and may oust at any time. Must allow for at least 1 day after lease expires Holdover as Renewing Lease: LL holds T to a new term similar to the previous one

Duty to Deliver Possession o o English Rule: Responsible for ousting holdover Ts. Legal AND Actual Possession American Rule: T is responsible for ousting holdover previous Ts. Legal Possession

SELECTION

OF

TENANTS

Civil Rights Act of 1866 o o No Refusal to Rent/Sell: Race DNA to Advertisements Property 20

Fair Housing Act of 1968

3604 No Discrimination with: (a): Rent/sell on race, color, religion, sex, familial status, or national origin (b): Terms, conditions, or privileges by same group in (a) (c): Advertising by same group in (a) + handicapped people

3607 Specific Exemptions: 3604(a)(b)(c) DNA to Religious organizations, private clubs Familial status doesnt apply to housing for elderly

3603 General Exemptions: 3604(a)(b) DNA to Single-family house where owner does not own more than 3 homes, does not use a broker, and does not advertise in violation of multifamily dwelling limitations Living quarters for no > four families living separately, if the owner uses as his residence too

Note: State and Local Statutes can go further

TRANSFERRING

LEASE

Assignment o o o o Transfer of T1s entire term Language of K indicates entire term, even though may use any words Reversion for LL LL is in Privity of Estate with any T currently in possession of the land via assignment LL can sue anyone who has Privity of K or Estate for rent owed, can only get full amount once Assumption: T2 takes on duties in T1s head lead -> T2 has Privity of K with LL now Novation: LL explicitly releases T1 from Privity of K after assignment to T2

Sublease o o Transfer of part of T1s term Language of K will indicate less than full amount given Property 21

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Reversion for T1 (and LL on T1s estate) T2 no Privity of K or Estate with LL

LL Consent o With no provision, implied that LL can only deny xfer for commercially reasonable reason Provision beats the implication can agree to let LL artificially deny

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