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First Possession
Acquisition By Capture: WILD ANIMALS (fer natur) are previously unowned. Establish First Possession with: 1) Actual physical control 2) Intent to control -Mere pursuit is not enough. -To gain possession of wild animals: A) Physically capturing, B) Trapping (so that capture is inevitable), or C) Mortally wounding animal. Pierson V. Post Trespass of chattels: intentional interference with anothers exclusive moveable personal property.

Subsequent Possession
Acquisition by Find: Finder: the first person who has found the lost or unclaimed chattel (tangible, personal, moveable object). Requires two elements: (1) Intent to control and (2) an act of dominion or control Types of Found Property: (a) Lost Property: unintentional leaving of property by owner who still wants it -The owner intends to keep his ownership rights in the chattel Rule: Finder gets title to lost property (good as to all but true owner) Exceptions: Owner retains rights above all in these exceptions (1) Found in private or semi-private place. (2) If finder is a trespasser, the landowner has more relative right that the finder, but less than the true owner. (3) Found embedded in soil, the landowner has more relative right that the finder, but less than the true owner. (4) Employer/employee relationship (the more formal the relationship, the less likely the finder is able to keep it.) (5) Usually, if the tenant finds it, landlord will have superior claim over the tenant.

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(b) Mislaid Property: true owner purposefully placed item somewhere (left it) and fails to reclaim it or forgets where it is. -Owner intended to retain ownership of the property. Rule: title goes to locus in quo (owner of the land) in which the chattel was found [title good as to all but true owner.]

(c) Treasure Trove: owner concealed it in a hidden location long ago -Traditionally: gold, silver, coins, buried in groundwhen found, went to King. -Now: $, valuables, doesnt need to be in ground. -Same exceptions to title as Lost property (title good as to all but true owner.) (d) Abandoned Property: previous owner actively left with intent to leave chattel Ex: placing something in the trash for collection - Valuable property: court typically assumes it wouldnt be (and wasnt) abandoned. - Very difficult to prove because you have to inquire about the intent of the true owner; courts rarely classify a chattel as abandoned. Rule: holds title good as original owner

Bailment
Bailment: is the rightful possession of goods by one who is not the owner. The bailee receives no title. Bailor = one who delivers the chattel Bailee = receives the chattel -To create a bailment, the bailee must: (1) intend to possess the chattel, and (2) actually possess the chattel. -Bailment only grants the bailee the right of possession of the chattel, not full ownership rights. -To establish bailment, burden is on Bailor. -If bailee sells it, buyer only gets right of possession. Exception: UCC 2-403 Doctrine of Entrustment -If I entrust item to merchant who deals in merchants of that kind, merchant can convey good title to a good faith purchaser in ordinary course of business. - However, theft = void title, sale to GFP for value still does not transfer good title.

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-Bailee has duty of care reasonable under the circumstances. -Reasonable care is established by type of bailment. Three types of bailments: (1) Mutual benefit bailment: bailee has duty to take reasonable care of the property breached by ordinary negligence. (2) Primarily benefits bailee: high degree of care breached by slight negligence. Ex: When the bailor acts gratuitously (3) Primarily benefits bailor: slight duty of care breached by gross negligence. Ex: When bailee acts gratuitously The bailee becomes strictly liable to the bailor for the chattel, if it is not returned. Ex: This includes wrongful delivery. If the bailee mistakenly delivers the item to the wrong person who has no legal right, even in good faith, the bailee will be held strictly liable. Exculpation from liability: The courts will usually not uphold measures taken by the bailee to relieve himself from liability if the bailor is not actually aware of this provision. -To be enforceable there must be some type of contract between bailor and bailee. Bailor must assent to terms; mere knowledge of the terms is usually not enough.

Possession by Gift
Gift: a voluntary transfer of an object (personal or realty property) without consideration from one party to another. Types of gifts: (1) Inter vivos gift: a gift made from one living person to another. (irrevocable once made) (2) Testamentary gift: a gift made upon the donors death, if it sufficiently meets the requirements of a valid will. (3) Causa mortis gift: a gift made from a living person who reasonably anticipates their imminent death. -Must be personal propertycannot be real property -Can be revoked by: -Express revocation

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-Death of donee (prior to death of donor) -Recovery by Donor (donor doesnt die) Elements of an inter vivos gift: 1. Donative Intent: mental desire a. The donor must intend to make an immediate transfer of the chattel to the donee. b. Statements made by the donor are usually the best evidence of donative intent. c. A gift promised in the future is not enforceable (without consideration). -If made in the future, must be (1) supported by consideration, or (2) testamentary. d. Can be evaluated by words [I give you this X]; relationship of parties [father/son]; Circumstances [birthday, x-mas]. 2. Delivery: outward manifestation of intent Note: delivery may be made, even if the original owner wishes to retain possession throughout his lifetime. a. Actual: physical transfer of the item from the donor to the done. -In cases were actual delivery is practicable and possible; then this should be the method of delivery as it is the most clear and concise. b. Constructive: physical transfer of some item that will grant the done access to the gift. Ex: keys to a safe. -Acceptable when actual delivery is impossible or impracticable. c. Symbolic: physical transfer of some item that symbolically displays that a gift has been given. Ex: a letter 3. Acceptance: -If the item is of value to the donee, then acceptance will be assumed. 4. Gifts become effective immediately upon the meeting of the three above elements, and are irrevocable, unless made in causa mortis. 5. Gifts causa mortis:

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a. Requires the above elements with the addition of the donors belief in his imminent death. b. Gift becomes revocable if the donor does not die of the situation, which created his peril. In some states, the gift is automatically revoked upon the donors recovery. c. Contemplation of suicide: -Majority: does not count as a gift made in causa mortis. Therefore, the gift is irrevocable under this approach. -Minority: does meet the necessary peril to render a gift made in causa mortis. Therefore, the gift is revocable under this approach. d. Burden of Proof: some courts require gifts made in causa mortis to have clear and convincing evidence, rather than the usual preponderance of the evidence.

Title Transfers
Titles: A seller of personal property cannot pass on a better title than he or she possesses in the item, even to a bona fide purchaser. a. Theft - has voided title can never convey good title. -The original owner may take action against BFP for recovery. b. When a seller has voidable title, in some instances they may transfer good title to the GFP. -Original owner may take action against the wrongdoer, but not the GFP. UCC 2.403: Doctrine of Entrustment A purchaser of goods acquires all title, which his transferor had. -Places a heavy burden on the buyer to investigate the validity of the sellers title Exceptions made to protect good faith purchaser under certain circumstances: a. In order to qualify as a GFP, a buyer must: -Pay valuable consideration -Believe in good faith that the seller holds valid title. Rule: When an owner entrusts her goods to a merchant who deals in goods of that kind, it gives the merchant the power to transfer title to a good faith purchaser in the ordinary course of business.

-Original owner may only seek damages from the merchant who wrongfully sold it, not the good faith purchaser.

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Adverse Possession of Real Property

Adverse Possession: way to acquire title held by another (usually the record title holder, but could be another adverse possessor). -Allowed for title clearance, reward those who use the land, punish those who dont. -Usually occurs when the true owner does not seek an ejectment of the occupier within a reasonable amount of time (statutory) -Burden is on the possessor to prove the elements of AP -Statute of limitations bars the prior owner from bringing an action to recover possession, thus vesting title in the adverse possessor. Usually 10 years for real property and 6 years for chattel, jurisdictional specific. Rule: Statute of limitations for adverse possession, in conjunction with all the other elements being met, extinguishes title in the original owner and grants it to the adverse possessor.

-Majority rule: SOL starts when AP starts. -Minority rule (Discovery rule): The cause of action, the AP, does not start until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts that form the basis of a cause of action. -Under discovery rule, the statute does not beginning running unless the possessors conduct is obvious enough to place a reasonable owner on notice. Ex: the rule permits an artist who uses reasonable efforts to report, investigate, and recover a painting to preserve the rights of title and possession. -NY rule (Demand and Refusal): SOL doesnt start until owner demands for the property back. -Owner gets the land back if he stops the AP before the statute of limitations runs. -Most cases for adverse possession of real property include: -Action for quiet title: occupier files claim to vest title in himself after meeting the requirements. Quiets all challenges or other claims to title. Elements of adverse possession: (1) Actual Possession -The land should be occupied in the manner in which a reasonable owner would do so (2) Open and Notorious -Possession must be visible and obvious, letting a reasonable owner know that their title is being challenged.

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-Owner need not have actually been notified, but a diligent inspection of the land should reveal occupancy by an adverse possessor. (3) Continuous -Without significant interruption -Re-entry by record titleholder will interrupt AP (4) Exclusive -Claimants occupancy cannot be shared with the true owner or others; he must claim the land as his. Should be exclusive as would characterize a reasonable owners exclusion of the land. -Re-entry by record titleholder will interrupt AP (5) Adverse/Hostile -Must be adverse to the interests of the true owner -True owner must not consent to AP occupancy of the land -Majority: objective view the state of mind of the adverse possessor is irrelevant -Minority: good faith believing the land is yours -Minority of jurisdictions require possessor to have been paying the property taxes on the land. -If AP has made improvements, owner keeps them. -If improvements were made in good faith or unjust enrichment would occur, courts will typically require owner of the land to pay for the improvements or sell the land to the AP at fair market value. Tacking: allow certain possessors to add (or tack) their periods of possession onto that of a prior possessor in order to satisfy the statutory period of AP. -Involuntary stop prevents tacking (interruption of continuous possession by adverse possessori.e. ejectment) -Tacking of AP is permitted if the successive occupants are in privity. -Typically happens in cases of errors in title Ex: if successive possessors mistakenly believe the land is theirs and/or the title inadvertently indicates this, then the successive possessors might be in privity. -This does not include random successive trespassers. -If there is a disrupt in continuity, then the required AP statute begins anew.

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-The privity requirement is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser.

Two types of tacking (1) A successor could indeed tack the land occupied by the predecessor onto that actually conveyed so long as there was adequate evidence of intent to transfer the occupied land. (2) The other type is when there are series of APs none of whom have occupied for the statutory period, but when the series of occupations are added together, there is an occupation for the statutory period. Disabled Owners: Most limitation statutes provide that the limitations period will be suspended from running (tolled) when the true owner (who possesses the cause of action for recovery of property) is under a specified disability at the time the cause of action accrues. AP against the Government: Traditional Rule a person cannot adversely possess property owned by the government. -Some states have modified this rule (minority) Ex: AP against the government may be maintained if the property in question is not held for a public use. Entry under Color of Title: -Describes a claim that is based on a written transfer of title a deed, will, or court judgment that happens to be defective and thus not valid. -The defect might be improper execution, a lack of capacity on the part of the grantor, the fact that the grantor does not have title to convey, or a wrongful description of the property. Minority view- a few states limit AP to claimants under color of title. Entry under color of title may produce some advantages: -Some states provide for a shorter limitations statute Rule: All states regard an AP who enters under color of title and occupies only a portion of the property described in the instrument as in constructive possession of the entire described property. This means that even though the AP has actual possession of only a part of the property described in the defective instrument he is entitled to acquire by AP all of the property described in the instrument.

Tolling: when cause of action started, if owner of property was a minor, insane, or imprisoned, we toll the statutewhen disability is removed, there is extended time for owner to bring

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action (Ex: 10 years after sanity returns, 10 yrs after released from prison, 10 yrs after 18th birthday). -May be maximum time period (ex 30 yrs total between tolling and SOLif property owner is incarcerated for 25 years when AP begins, the APer would not have to adversely possess the land for 25yrs until the owner is released, then for an additional 10 yrs afterwards to get title) -Conversely, tolling cannot shorten SOL. Equitable Doctrine of Laches an unreasonable delay in asserting a right, which causes sufficient prejudice to an adverse party to render granting of relief inequitable.

Adverse Possession of Personal Property

Rule: To establish title by AP to chattels, the rule of law has been that the possession must be (1) hostile, (2) actual, (3) visible, (4) exclusive, and (5) continuous.

-Statute of limitations for personal property (chattel) is usually 6 years. -Statute Majority rules are same as above. -The UCC permits a person with voidable title to transfer good title to a good faith purchaser for value in certain circumstances. -A person has voidable title if the goods are acquired by fraud; deceived the transferor as to identity, acquired the goods by a dishonored check, or is a merchant who deals in such goods. Actions taken for recovery of chattels: (These actions must be taken within the SOL) (1) Replevin attempt to recover personal property unlawfully withheld from the owners possession. (2) Trover attempt to recover the value of property rather than the property itself.

Estates in Land
General Overview: Present estate - legal interest that entitles the owner to immediate possession. Future interest - does not entitle the holder to immediate possession, but may become a present estate at some time in the future. Freehold Estates: -Freehold estates are transferable, inheritable, or devisable -Words are convey or grant Grantor person who bestows the grant

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Grantee person who receives the grant -If an owner dies intestate with no surviving heirs and no will, the estate will go back to the state. Testator a person who has written and executed a last will and testament that is in effect at the time of his/her death. A person who makes a will. Classification of Estates: Six possessory Freehold Estates (1) Fee Simple Absolute - 0 to A and his heirs -Magic words: and his heirs, but dont have to include those words -Duration: potentially forever unless transferred, conveyed, devised, or escheated -Now, fee simple absolute is presumed to be the default unless there are limiting terms -NO FUTURE INTEREST -Transferable, Inheritable, Devisable, Alienable -All lesser estates are carved out of fee simple (2) Fee Tail - O to A and the heirs of his body -Magic words heirs of his body -Duration: until family bloodline runs outno more oldest sons of oldest sons (primogeniture) then goes back to the state -Stays within family -Current tenant in tail may transfer for his life only -Not inheritable or devisable within estate b/c its basically a string of life estates -Future interest held by grantor: REVERSION -Future interest held by grantee: REMAINDER -Only recognized in a few states -Fee tail today: Majority becomes a fee simple Minority preserve fee tail for the lifetime of the first holder, then provide that it becomes a fee simple when passed to the holders children.

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Dissenting the tail in the states that recognize fee tail, the holder can convert it to fee simple by making an inter vivos transfer to another person. (3) Life Estate - O to A for life -Magic words: for life -Duration: measured by the life of A -Not inheritable or devisable -Future interest in grantor: REVERSION -Future interest in grantee: REMAINDER Life estate pur autre vie O to A for the life of B -Magic words: for the life of another or conveyance by life tenant -Duration: life of measuring life (here B) -A can transfer (but no longer than life of B) -Inheritable or devisable if A dies and B is still alive -Future interest in grantor: REVERSION unless specified to go to a third party upon termination of the life estate then REMAINDER

3 Defeasible Estates
Created when O wishes to retain some control over his property after he has made a conveyance (4) Fee Simple Determinable - O to School Board and its successors so long as used for school purposes. -Magic words: words of time - so long as during for -Duration: until limitation occurs, then it ends AUTOMATICALLY. -Transferable, inheritable, devisable -Future interest by grantor: POSSIBILITY OF REVERTER Ex: O conveys to G and her heirs so long as the land is used as a farm. Once the land ceases to be used as a farm, it automatically reverts back to O (or his heirs.) Determinable Life Estate O to husband for life and so long as he does not remarry -Duration: life of husband -Future interest after life estate: here REVERSION (might be remainder in grantee)

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-Could be cut short: if husband remarries -Future interest if husband remarries: POSSIBILITY OF REVERTER (5) Fee Simple on Condition Subsequent - O to School Board and its successors on condition that it is used for school purposes else O and his heir may reenter and take possession. -Magic words: words of condition - on condition that provided that but if -Duration: potentially forever, lasts until condition is breached and owner takes affirmative steps to reclaim. -Transferable, inheritable, devisable -If condition occurs: must take affirmative steps it does not end automatically -Future interest by grantor: RIGHT OF ENTRY or POWER OF TERMINATION Conditional Life Estate O to husband for life and on condition that he not remarry -Duration: maximum - husbands life (future interest then reversion) -Could be cut short: must take affirmative steps (future interest then right of entry) (6) Fee Simple Subject to Executory Limitation - O to School Board and its successors but if not used for school purposes then to public library and its successors. -Magic words: words of condition or words of limitation but if provided that -Duration: forever, but if condition occurs it ends at once -Future interest: always a 3rd person and called EXECUTORY INTEREST -Ends automatically upon breach of condition -Transferable, inheritable, and devisable Life Estate Subject to Executor Interest O to husband for life but on death or remarriage then to B and her heirs. -Maximum duration: husbands life (future interest after death here is remainder in B) -Could be cut short: marriage (automatically ends and then future interest is executory interest in B) Condemnation of Defeasible Fees when a government exercises its power of eminent domain and takes property that is held in defeasible fee, it takes the entire fee simple absolute.

Future Interest Retained by the Grantor

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(1) Reversion: follows Life Estate; Fee Tail; Non-freehold estates -Inheritable, transferable, devisable -If O dies before he retains the reversion, then it transfers to his heirs (2) Possibility of Reverter: follows Fee Simple Determinable -Inheritable, devisable, alienable -Happens automatically when the conditional event happens (3) Right of Entry/Power of Termination: follows Fee Simple on Condition Subsequent -Inheritable, devisable -Transferor must take affirmative action to regain possession; it is not automatic

Future Interests Retained by the Grantee

-Can only be a remainder or an executory interest (1) Remainder: follows a life estate, fee tail or non-freehold estate -If the wording of conveyance is ambiguous, then the courts will presume the remainder is vested, not contingent. -Wait patiently for prior estate to end -No gap -No cutting short -Four types: either vested or contingent (a) Contingent remainders: O to A for life, then to As children. The class of As children is not in existence; we cannot determine who they are. The class of As children have a contingent remainder. -A remainder is contingent if either (1) its owner is not known (unascertainable), or (2) there is a condition precedent that must be satisfied before a known owner of the remainder is entitle to possession upon expiration of the prior estate. Ex: To B for life, then to the heirs of D. -Because the heirs of D are not ascertainable, they have a contingent remainder (b) Indefeasibly Vested Remainder: O to A for life, then to B and her heirs.

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-Person is born (ascertained); no condition precedent (other than the natural termination of the preceding estate); and cannot be divested (taken away) by the occurrence of some future event. -Unborn children are not ascertainable -Persons heirs are not ascertainable until death -Cannot require some condition to be met before possession takes place (c) Vested Remainder subject to complete divestment: -Subject to a condition subsequent. -It is followed by an executory interest Ex: O to A for life, then to B and her heirs, but if B does not survive A, then to C and his heirs 1. D is ascertainable and his interest is not subject to condition precedent 2. His interest is ready to become possessory, unless he dies before B, then his interest will be divested to E. (d) Vested Remainder subject to open or partial divestment: O to A for life, then to As children and their heirs. (One child born) -Class Gifts -Held by one or more living members or a class that may be enlarged in the future Ex: O to B for life, then to Cs children. 1. If at the time, C has two living childrenboth are ascertainable and there is no condition precedent. Then C and wife have another child. This remainder then opens to be split between the three children now. Preference for vesting: -Can accelerate into possession -Assignable -Indestructible -Not subject to RAP (except for partial) Vested vs. Contingent lingo: -Contingent: conditional element is incorporated into the description of, of into the gift to, the remainderman. -Vested: after giving the gift, if a clause is added divesting it

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(2) Executory Interests -Divests a holder of a vested interest and transfers that interest to the holder of the executory interest. -Always held by a third person (or grantee) -Indestructible -Usually contingent and thus subject to RAP -Follows a fee subject to an executory limitation; a fee simple determinable (if held by a third person); a vested remainder subject to complete divestment -Two types: (a) Shifting Executory Interest -Shifts the interest from one grantee to another grantee (b) Springing Executory Interest -From grantor to grantee Destructibility of Contingent Remainders: -Held that a legal contingent remainder in land was destroyed if, at the expiration of the preceding freehold estate, it was still contingent. The remainderman was not entitled to possession because the contingency had not occurred. -Usually will go to grantor by reversion Shellys Rule: -O to A for life, remainder to B for life, remainder to As heirs -If applied: take remainder from As heirs and give to A: thus A for life, remainder to B for life, remainder to A. Doctrine of Worthier Title: -Prevents a person from making an inter vivos conveyance of a future interest in land to his own heirs -O to A for life; remainder to Os heirs. -If applied: strike remainder to Os heirs; thus O to A for life. A reversion is created in the grantor

Rule Against Perpetuities: -Applies to: contingent remainders; executory interest; or vested remainders subject to open

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-Must find a validating life -A future contingent interest in a transferee will be invalid at the moment of creation if there is any possibility, no matter how unlikely, that the interest will still be contingent 21 years after everyone identified by the conveyance has died. (Fails to vest within the validating life plus 21 years.)

Landlord and Tenant

-While traditional law was mainly oriented toward protecting landlords, modern law increasingly seeks to protect residential tenants. -The common law treated leaseholds as non-freehold estates. -The common law also regarded the creation of a leasehold as a conveyance because it creates a present possessory estate and a reversion in the owner of the fee. -Commercial leases are treated differently than residential leases in key aspects because they assume that the parties to commercial leases are able to bargain for terms that reflect their mutual desires. Residential lease transactions often involve a take it or leave it lease offered by the landlord. 4 Types of Leasehold Estates: (1) Specific Term (Term of years) -A lease for a fixed or computable period Ex: one week, one day, one year The lease will terminate automatically at the end of the period, and the landlords reversion will become possessory. -Continue possession by the tenant is wrongful. -Statute of frauds requires that leases for more than one year be in writing. -To renew such a lease, a new agreement is necessary to create a new leasehold. -A term of years may be defeasible Ex: O leases Blackacre to A for 5 years or until O sooner terminates the lease.

(2) Periodic Tenancy -Results when possession is transferred for a specific period that will automatically be renewed for that period until and unless a party has given adequate notice to the other party of termination of the lease. Ex: month to month or from year to year

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-To terminate a periodic tenancy the law requires that notice be given in advance for at least the period of the tenancy, but not longer than six months in advance. Ex: notice to terminate a month to month periodic tenancy must be given at least one month in advance of the next renewal period, but notice to terminate a year to year periodic tenancy must be given at least six months in advance of the renewal period. (3) Tenancy at Will - no set period -The tenant has possession for no defined period of time. Either party may terminate the tenancy at any time. -Problems can arise when a lease of no definite term grants to one party the right to terminate at any time, but is silent with respect to the other party. Ordinarily, this creates a tenancy at will, and each party has the right to terminate the tenancy at any time. (4) Holdovers, or Tenancy at Sufferance -When a tenancy lawfully in possession stays on after his tenancy has expired he is, strictly speaking, no longer a tenant at all. -His status differs from that of a trespasser, who never had any right to possess the property at any time. Rule: where a tenant holds over after expiration of the term provided for in his lease, the landlord may either (1) evict the holdover and also obtain damages or (2) may consent to a new tenancy to which the provisions of the expired lease are applicable. The choice is entirely that of the landlord. -Once a landlord has made his election and communicated it to the tenant he cannot change his mind without the tenants consent. -Most states treat a new tenancy resulting from the landlords exercise of his option to do so as a periodic tenancy, though the period may differ.

-Some states impose statutory damages upon holdovers, often double or triple rent. Although a few convert a holdover into a tenancy at will with the rental obligation fixed at the reasonable value of possession of the premises, which might be more or less than the stipulated lease rental under the old lease. -In the states that impose liability for double or triple rent, the common law right of the landlord to choose to impose a new term on the tenant is abrogated, leaving the landlord with the choice of either (1) eviction and statutory damages or (2) negotiating a new lease with the consent of the tenant. Fair Housing Act: -Primarily to address the problem of private racial discrimination in the sale or rental of housing -Covers discrimination on the basis of color, race, religion, sex, familial status, or national origin

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1866 Civil Rights Act 42 U.S.C. 1982: -Was intended to eliminate private racial discrimination in housing -A valid exercise of congressional power to enforce the 13th amendment -Is both broader and more limited than the Fair Housing Act: -Broader no exemptions from its coverage -Limited it applies only to racial discrimination; it does not prohibit discriminatory advertising and requires proof of intentional discrimination. -A P makes out a prima facie case of a Fair Housing act violation by proof of either discriminatory intent or discriminatory impact. The burden then shifts to the D to prove that his action was a bona fide business necessity. Delivery of Possession: -A landlord has a duty to deliver possession of the leased premises to the tenant. -There is no dispute about this when the premises are vacant on the date that the term begins. But if the premises are occupied on that date, problems erupt. -There are three types of occupants that might be in possession when the tenant expects to move in: (1) the landlord, (2) a wrongful occupant (holdover or a trespasser), or (3) a third party with a valid claim to possession. Usually, it is a holdover tenant. -This duty is an implied term of every lease. American rule the landlord has fulfilled his duty so long as he has given the tenant the legal right to possession. If a wrongful occupant occupies the premises, holdover tenant, the landlord has delivered the legal right to possession. The new tenant must evict the holdover and, if possible, obtain damages from the holdover. Breached when: -The space is rented to two tenants for the same time -If a third party has a better title to the property than does the landlord -The landlord himself is in possession and frustrating the tenants ability to move in English rule (majority) the landlord has a duty to deliver actual possession to the tenant. The landlord has a duty to deal with the holdover and is liable for damages for failure to do so. Most states apply the English rule

Subleases and Assignments of Leaseholds: -In general a tenant may freely transfer the leasehold unless the lease contains limitations upon this right, the tenancy is one at will, or the lease involves personal services and transfer would substantially impair the prospect of performance of those services. -A transfer may be either an assignment or a sublease.

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English Doctrine: (Majority) Assignment - if the instrument purports to transfer the lessees estate for the entire remainder of the term. Sublease if the instrument purports to transfer the lessees estate for less than the entire term even for a day less it is a sublease, regardless of its form or of the parties intention. Basically, the lessee retains a right of entry as a sufficient reversion. Common Law Doctrine: Assignment an outright transfer of all or part of an existing lease, the assignee stepping into the shoes of the assignor. Sublease involves the creation of a new tenancy between the sublessor and the sublessee, so that the sublessor is both a tenant and a landlord. Privity of Estate: -The voluntary relationship two parties have with respect to an estate in land Privity of Contract: -The voluntary relationship of two parties with respect to an agreement between themselves or others. A sublease creates a new contract between the original lessee and the sub-lessee, so privity of contract exists between them but not between the landlord and the sub-lessee, as there is not contract between them. Nor is there privity of estate between the landlord and the sub-lessee, because the sub-lessee has an estate that is of lesser duration than the estate held by the original tenant under the head of lease. An assignment transfers the entirety of the estate held by the original tenant to the transferee, thus placing the transferee in privity of estate with the landlord and ending the original tenants privity of estate. But that transfer does not relieve the original tenant of liability on the lease contract he made with the landlord. The original tenant remains in privity of contract with the landlord. Novation where the landlord agrees to release the original tenant of the contractual liability. The transferee may enter into privity of contract with the landlord by agreeing to assume the obligations of the original tenant under the head lease. Landlord Consent to Commercial Assignments Majority Rule: where the lease contains a clause stating that the lease cannot be assigned without the prior consent of the lessor, the lessor may arbitrarily refuse to approve a proposed assignee no matter how suitable the assignee appears to be and no matter how unreasonable the lessors objection.

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Exception: cannot deny due to racial discrimination Minority: where a lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignment. Residential Leases: -Typically contains a requirement that the landlords consent is necessary for any transfer of the lessees interest -The implied requirement of reasonableness is still the minority view, but it is increasingly being adopted in the commercial context. Tenant Default: Obligations and Remedies -Most common failure to pay rent -A tenant can be in default by his breach of any number of possible lease covenants -When this occurs, landlords have a variety of remedies -If tenant is still in possession, the landlord will want to recover possession Self Help: recover possession (1) English rule a landlord may use necessary and reasonable force to expel a tenant and may do so without resort to legal process (2) Minority - A landlord must in any case resort to the remedy provided by law, usually summary ejectment proceedings. (3) A landlord entitled to immediate possession may gain possession of the leased premises by peaceable means, and necessity for recourse to legal process exists only where peaceable means fail and force would otherwise be necessary. -Any retaking which is against the will of the tenant constitutes a forceful retaking and thus is not permitted Duty to Mitigate Damages: -When a tenant has abandoned the premises before expiration of the lease term: Traditional Rule: permits the landlord to do nothing but wait until the end of the term and sue for unpaid rent. Unless the lease contains an acceleration clause a provision that stipulates that, upon tenant default, the entire rent for the remainder of the lease term is immediately due and payable the rent only becomes due as the payment period arrives. Ex: a ten-year lease that is due monthly is not owing until each month passes. -If the landlord wants to recover rent immediately, he must seek damages for the tenant breach, and the measure of those damages will be the present value of the difference between the actual

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rent and the fair rental value for the remainder of the term. If fair rental value and actual rent are the same, the damages are zero. This rule creates an incentive for the landlord to accept the tenants surrender of the lease and re-let the premises to someone new. -When a tenant abandons he is regarded as offering to surrender the lease. If the landlord accepts that surrender he has agreed to forego any right to recover the rent that would have become due after the surrender, but he retains the right to recover unpaid rent for periods prior to the surrender. -If the landlord fails to notify the tenant of accepting the surrender and takes action that is clearly inconsistent with the originals tenant right to occupy an implied acceptance of surrender is the likely result. -The landlord does not have to accept the tenants offer of surrender. He could sit back, wait for the term to expire, and sue the tenant for the rent. Contract Rule: requires mitigation of damages to a residential lease for matters of basic fairness. Majority view: states impose on landlord and tenant a duty to mitigate damages, by statute. Tenant Duties: (1) No waste, (2) Nuisance, or (3) Illegal Activity -In the absence of such provisions, tenants are still liable for waste Nuisance use property in a fashion that does not injure the ability of another possessor to have reasonable use and enjoyment of his property. A breach of this duty constitutes actionable nuisance, the remedy for which is injunction to stop the activity that constitutes a nuisance. In the absence of a no illegal activity provision, a landlord may still be able to evict and terminate the lease if the jurisdictions statutory law so provides. Commercial Duty to Operate: -Lease of commercial property intended for some form of retail use often split the rent into two parts a base rent in a fixed amount and a rent that is a percentage of the tenants gross sales. -A well-drafted lease might contain provisions explicitly requiring the tenant to continue to operate the business in a fashion carefully and precisely defined. -When a tenant is in default of an express lease covenant to operate a suit for damages is likely to be the landlords sole remedy Landlord Duties: Actual Eviction when the landlord prevents the tenant from access to the leased premises. This extinguishes the tenants liability to pay rent.

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Ex: physical lockout, or the landlords failure to perform a lease obligation that is necessary for the tenant to have possession. Actual Partial Eviction when the landlord physically dispossess the tenant of a portion of the leased premises. Gives the tenant the right to move out and stop paying rent without liability for its non-payment. But if a tenant stays on after an actual partial eviction, jurisdictions split on the result. Traditional Rule: the tenant may lawfully cease paying all rent until the actual partial eviction ceases Minority: the tenant is entitled only to a partial abatement of rent in an amount that reflects the proportion of the premises denied to the tenant. Constructive Eviction landlords breach of the covenant of quiet enjoyment -Today this covenant is universally implied into every lease. Upon breach, the tenant may vacate and terminate the lease, or stay and sue for injunctive relief or damages. -Tenant must vacate within a reasonable time Majority: a tenant who claims total constructive eviction must vacate Minority: tenant can stay in possession and withhold rent (Minority) Partial Constructive Eviction: -If the landlords conduct is sufficiently egregious that it denies to the tenant the quiet enjoyment of a significant portion of the premises, the tenant may stay and abate the rent Implied Warrant of Habitability: Rule of Caveat Emptor tenant had a duty to inspect the premises to determine their safety and suitability for the purposes for which they were leased before entering a lease Law of Waste it was the tenants implied duty to make most repairs -Warrant of Habitability applies to written and oral leases -WOH has been adopted in over 40 states. -Landlord must use ordinary care to ensure premises are reasonably safe (landlord liability in tort law) -Not applicable to Commercial leases, instead there is an implied warranty of suitability