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Law School Property Class Notes

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									Property 08/24/04
Part 1—Landlord/tenant Part 2—Non-Concurrent Estates  Present & future estates  Rule against perpetuities Part 3—Concurrent Estates

Landlord/tenant Law Lease contains varying provisions regarding acceptable/unacceptable behaviors/actions specific to your apt., building, etc. Many leases have clauses prohibiting transfer If you sub-let your apt. for $1500/month, when you pay $1000/month, do you get to keep the extra $500? Property consists not of ownership of a particular thing, but a bundle of rights Property rights: Right to use Possess Transfer Exclude Manage Receive income Dispose

08/26/04
Lease v. License 1. Principal Problem—Resort (p.27) Is time-share a lease or license? Members have no say over what apartment they get, but their pitch is ownership Beckett had a right to possess a specific spot Members may transfer all rights under the membership w/consent of Resort How long is the duration of this? One could argue the duration of the term was the duration of the building‟s existence Hotels do not guarantee you a specific room; but in a time-share, you are promised a spot at a time; renting a hotel room 1

You would want the State Dept of Real Estate‟s jurisdiction to be larger to protect abuses of individual citizens

Beckett v. City of Paris We know the store can designate a space; the agreement was not assignable; Beckett had to turn over all of his receipts to pay percentage of them Like the time-share, Becket does not have a specific space, but a spot does exist win for them Policy favoring the tenant b/c City wrote the document so interpret ambiguity in favor of Beckett b/c City wrote the agreement and they left them in there

Wenner & Phoenix v. Dayton-Hudson It is a license b/c it was non-assignable; generally, licenses are specific If it was a lease, it would be taxable by the city Even though the parties call it a lease or a license, it is the intent of the document; courts do take that into account, but does not get at bigger picture of agreement Both Beckett and Wenner have payments due, one calls it rent and the other doesn‟t Statutes should be construed liberally in favor of taxpayer and strictly against the State

08/31/04
Lease v. License Differences are difficult to distinguish Beckett case and Wenner case where Court found different results under similar facts There is no answer If CA Supreme Court rules on a piece of property in CA, it‟s binding on the cases in that state; but nothing in NV or PA; property is a state law issue Except Housing Administration, which is federal Courts will go different ways

Lease v. License  Lease entitles a party to the right of possession  License authorizes the right to use the land  Determining Factors: o Designation of a specific space (lease) o Ability to assign (leases are assignable, licenses are personal) o Language used  What was the intent of the parties o Context in which the issue arises 2

“principle of assignability”—leases are generally assignable; licenses are generally personal, but you can make them transferable; both are transferable, but the default rules are a little different

Right of Possession at the Commencement of a Lease  Legal right of possession as of the date that the leasehold commences - If the landlord makes it impossible to enter at that time, tenant may be able to cancel lease and recover damages  Breach by landlord o Landlord fails to have any possessory right to the property o Landlord has given another party a prior right of possession o Landlord personally prevents a tenant from entering or taking possession Sample Problem from August 26th, 2004 (Lance/Hal/Tanya): At the commencement of the lease, the majority rule is that the landlord has to provide actual physical possession Rules * Majority Rule (English Rule) - Duty and obligation upon landlord to deliver actual physical possession at the beginning of the lease - Landlord is in better position to decide if person will be a holdover tenant or not and more experienced and better able to deal w/a holdover tenant * Minority Rule (American Rule) - Landlord is only required to deliver legal possession - Tenant can take action against holdover just like landlord can She doesn‟t have to pay rent to Lance and she gets her deposit back Original rent was $300 She‟s paying $375 Market price for a comparable apt. $350 So Tanya should only get $50/month How much damanges would a person have incurred acting reasonabley in his/her situation and that entitles her to $75/month, not just $50/month; what are the other comparable apartments is the question What if she pays $275 for a comparable apartment? Tanya is better off $25 She doesn‟t get anything but her security deposit back What if she pays $275 for an inferior apartment? Tanya gets $75 If she used a realtor to find inferior apartment, she might be able to recover the realtor‟s fees In what situation can she not terminate the lease? If landlord says holdover will be evicted by sheriff in 2 days

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09/02/04 Landlord-Tenant Interference w/Actual Physical Possession and Quiet Enjoyment
Tenants have a right to possess property for the duration of the term

Interference During the Term of the Lease  Quiet Enjoyment—landlord has promised/covenanted this right to tenant for the life of the lease; promise that tenant should enjoy the premises in peace and quiet w/out interference or disturbance by the landlord i.e.) you are foreclosed on and do you have a claim against the landlord and why? Eviction of one of paramount title If a 3rd person interferes w/legal issue, tenant entitled  Interference by Trespassers or Wrongdoers o No legal recourse unless landlord has been negligent  Interference by Landlord of someone for whom the Landlord is Responsible

SMITH V. MCENANY Restatement looks to partial abatement for partial eviction Efficiency, landlord can make better use of land that tenant is not using Court explicitly rejects focusing on intent Why is Smith rule the better rule? Why should you punish the landlord? It deters landlords from interfering; landlord agreed to lease premises as a whole; we don‟t want landlords to come in and change it Counter is that it is unfair and unefficient—what if it‟s a minor encroachment Smith Rule doesn‟t take wagon turning into account You pay for whole thing, landlord takes a part of it, you don‟t have to pay rent Prevents landlords from taking land like that, but it does seem kinda unfair to justify total abatement of rent Majority—Smith rule that total abatement of rent is in order for any encroachment (excluding minimal) on land Minority—Restatement rule; leave parties to their equitable remedies; apportion the loss

p. 37/3 Principal Problem Tri-State doesn‟t have to pay Leo the rent w/applying Smith rule 4

Which sucks b/c Tri-State can still operate their business, they actually put up 4 posts to mark off the spot Smith rule has almost punitive remedies, but prevents landlords from just coming and taking part of your land there Restatement rule—as a tenant, you wanted the whole piece of land

09/07/04
ECHO CONSULTING SERVICES, INC. V. NORTH CONWAY BANK 3 claims: 1. actual/partial eviction, 2. constructive eviction, and 3. breach of quiet enjoyment Court first addresses actual/partial eviction claim Partial/actual eviction when tenant is deprived of some portion of the leased property Echo claiming they had access through main street-level door Court rejects this b/c the lease gave them the non-exclusive right to access the building and as long as they have access at least one door, then it‟s not partial eviction Court then address constructive eviction claim Court says constructive eviction when no physical deprivation occurs, but deprives tenant of enjoyment of the property Court says you need a substantial interference Court rejects constructive eviction Court last addresses quiet enjoyment Court uses this test to determine when it is a breach of quiet enjoyment: Landlord has to substantially interefere, but it is different then constructive eviction, which is much higher than quiet enjoyment How does one determine damages for breach of quiet enjoyment? Look at what they lost; value before and after breach of the lease Back to PRINCIPAL PROBLEM: This case helps Tri-State b/c Theresa was interfering w/their quiet enjoyment by building the trash area Strongest cause of action is a partial/actual eviction We know from SMITH v. MCENANY any breach beyond minimus constitutes actual/partial eviction Problem w/breach of quiet enjoyment is that they haven‟t been substantially interfered with, although they did mark off the posts, originally; on the other hand, now there is a permanent structure **Clearly proceed under Smith/McEnany rule to recover fully  Then seek under the quiet enjoyment Constructive eviction requires substantial interference In most cases it means the tenant has to actually move out

POSSESSION AND TENANCIES HAND OUTaccessible on Black Board 5

Constructive Eviction—has to be so bad the tenant has to move out  Guy next door to you in your apartment complex plays music so loud it shakes your room Interference is so bad you can‟t use the property  Heat gets cut off and your apartment is unlivable and cold

TENANCIES
CREATION EXPRESS AGREEMENT (written lease) SUCCESSIVE EXPRESS PERIODS; week-to- AGREEMENT; week, month-toIMPLICATION (no month, or year-toset termination year date); OPERATION OF LAW (1-tenant holds over, 2-invalid lease)* NO DESIGNATED PERIOD DURATION FIXED PERIOD; one year TERMINATION ENDS AUTOMATICALLY (date is certain) PROPER NOTICE; at common law, year-to-year requires 6 months notice; other periodic tenancies requires 1 period in advance; notice will terminate as of end of term EXPRESS NOTICE; at common AGREEMENT; law, no advance IMPLICATION notice required; (one just enters land today, many w/consent for jurisdictions require landlord, but there is some notice not call for payment of rent or termination date) HOLDOVER; one LANDLORD‟S who wrongly ELECTION; remains in landlords given possession election of 2 options

TENANCY FOR YEARS PERIODIC TENANCY (very common)

TENANCY AT WILL

TENANCY AT SUFFERANCE

DEPENDENT ON LANDLORD‟S ACTION

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If a tenant for years remains in possession and continues to pay rent, some courts argue a Periodic Tenancy arises when landlord begins accepting rent from hold over OR Where there is an invalid lease—tenant goes into possession and pays rent periodically, but lease violate Statute of Frauds

EXAMPLES: 1.) Landlord leases to tenant for Sept 1 to Sept 15—TENANCY FOR YEARS 2.) Tenant goes into possession for $1000/month for no set duration—PERIODIC

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3.) Landlord and prospective tenant are negotiating for possession for a property for 5 years at $50,000 and landlord says “do we have a deal?” and tenant says “yes”—PERIODIC by operation of law; lease violates Statute of Frauds 4.) At end of 1st year of law school and of lease, few weeks before lease expires and landlord asks if you want another year‟s lease; landlord says rent will increase by 15%; you stay through expiration of lease, b/c you are undecided (you are then a holdover)—TENANCY AT SUFFERANCE… Do you have to pay the increase in rent? Yes; What if you held over for an additional period of time, but you are leaving, can you only pay the previous rent?

09/09/04
IMPLIED OBLIGATIONS Duties are implied based on normal expectations of parties Based on usage, etc. Who replaces a lightbulb? Tenant‟s responsibility Who replaces a roof? Roof is much more expensive Roof lasts longer—expected life is longer Landlord mainly benefits from roof - Repair would outlast lease - Benefit of tenant vs. Landlord - Replacement of item benefits one tenant vs. another tenant Landlord is more likely to be responsible in large apt complex mowing grass - Tenants may be expected to change things like lightbulbs, but might not be expected to perform more significant maintenance

p. 47 Principal Problem Tenant probably has responsibility to take care of landscaping/mowing grass Landlord gets the benefit created by this repair b/c the lease is only 3-years This is complicated to repair pool, this requires a repair person to come out Tenants as a class shouldn‟t be responsible or have the knowledge It‟s expensive Life of repair is expected to benefit the landlord Obligation to replace pool on Landlord Some courts would say lease is silent, there is no expectation, therefore neither party is responsible Landlord ultimately would repair it b/c if you leave it empty, it‟s a major liability and if it is full and not cleaned, it becomes green Then issue becomes whether landlord would bring suit against tenant 7

Remedies: #5. Places burden of bringing lawsuit on them #4. Expend money and then hope to get it back #3. Run the risk that they were unjustified in leaving and have to pay anyway at new place #2. #1. Places burden of recovering money on landlord—Landlord could be out in that situation; you can get around that by putting money in an escrow account MARINI V. IRELAND Repair wasn‟t complicated Generally, tenants are not expected to repair toilets Issue: Whether there is an implied warranty of habitability What is the rationale for imposing this? Court notes gov‟t regulations imposing on owners of properties obligation to maintain property; tenants don‟t have the ability, know-how, or expertise to comply with that; therefore, courts are justifying in applying more flexible rules and imposing obligation on landlord to maintain the premises up to code Court said warranty of habitability depends on language of the lease and the intent of the parties Court looks to factors like: - What kind of property is involved - Circumstances Landlord has a duty at the onset of the lease and during the lease for repair Vital facilities—toilet is a vital facility If landlord fails to make repairs and has reasonable time to do so, tenant can fix it, only if they notified landlord there was a problem One could argue the Marini case only applies to vital facilities and doesn‟t apply to the Principal Problem‟s swimming pool “Custom expectation” This case poses an obligation on the tenant to provide landlord notice when making a repair

KNIGHT Is it a good decision or does dissent have better view?

09/14/04
WADE V. JOBE Warranty of Habitability—landlord must maintain bare living requirements Code violation is NOT necessary to establish so long as claimed defect has an impact on the health and safety of the tenant 8

REMEDIES: Before tenant can receive a rent abatement, she must (1) notify landlord of breach and (2) give reasonable time for repair DAMAGES: Recovery is a percentage in which your use of property was affected Below 50% is hard, b/c tenant didn‟t bargain for less than 50% Court says they can leave if it‟s at this point Requires notice landlord of defect

KNIGHT V. HALLSTHAMMAR Does tenant waive implied warranty of habitability by continuing to live on premises? NO—Court says tenants have little bargaining power and have no alternative but to accept defective housing Does tenant waive implied warranty of habitability by moving into premises? NO—Doesn‟t affect landlord‟s responsibility to maintain premises Breach of habitability whether or not landlord had “reasonable” time to repair Dissent says they got cheap housing and they got what they bargained for, so it‟s unfair to change rules of the game on the landlord Warranty of habitability could be waived at the onset It could have the reverse effect of taking housing off the market Landlord makes repairs and then raises rent What majority is trying to do could potentially backfire by taking off lower-income housing, the landlord fixes it, and then charges more Who is better suited to set standards about housing policies—judicial v. legislature? Roseburg court is high-water mark in terms of action in CA DAVIDOW V. INWOOD NORTH PROFESSIONAL GROUP Warranty of Suitability—property is suitable for its intended purpose, not just warranty of habitability, like in residential Constructive eviction is very unreasonable in many situations, and not a preferred remedy As a result, many states have adopted warranty of habitability IMPLIED CONDITIONS  Depending on the expectations of the parties, custom and usage and local housing codes, a landlord may have implied obligations under the lease, such as a duty to repair or maintain the leased premises and that a breach of any one of these duties may give the tenant a variety of remedies, including: o Moving out and terminating the lease 9

o Making the repairs and offsetting the coast against future rent obligations o Reducing or abating rent to an amount equal to the fair rental value in view of the defect, or o Remaining in possession, playing full rent and seeking damages.

TORT LIABILITY If deck on back of house was missing a plank, tenant falls and hurts himself, is landlord liable? Under Common law traditional view, landlord‟s had no responsibility, tenant was responsible for goings on of the land Traditional View  Landlord has no duty to make the premises safe  Exceptions: Common areas Latent defects Landlord covenants to repair Negligent repairs Public premises Breach of the warranty of habitability Missing board was a patent defect

09/16/04 LANDLORD’S TORT LIABILITY
TRADITIONAL VIEW  Landlord has no duty to make the premises safe  Exceptions: o common areas—landlord must exercise reasonable care o latent defects—if at time of lease, landlord knows of defect tenant couldn‟t discover upon reasonable inspection, injury that results could find landlord liable  once disclosure is made, if tenant accepts premises, tenant assumes risk and landlord is no longer liable o landlord covenants to repair—if landlord promises to make a repair and doesn‟t do it, landlord is liable to tenant for injury that results o negligent repair—even if landlord is not contractual obligated to make repair and makes repair negligently or doesn‟t do it, could be liable for injuries that result o public premises—if landlord leases property that‟s to be used for admission for public, landlord could be liable to members of public for defect that existed in public areas at the time of the lease (stadiums, restaurants, etc.)  duty is not to tenant, but duty is to 3rd person, the people who come onto premises  disclosure to tenant of defect does not relieve landlord of liability 10

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o breach of the warranty of habitability—landlord liable for injuries for implied or statutory warranty of habitability and landlord has failed to exercise reasonable care to fix it (Asper v. Haffley) If you don‟t fall into one of those exceptions, landlord is not liable for the injuries that result Strict liability  Traditional view was too strict Courts have moved towards Negligence (Stephens v. Stearn)

ASPER V. HAFFLEY Breach of warranty AND failure to exercise reasonable care Court applying more of the traditional view

STEPHENS V. STEARN Court discards traditional view Adopts duty of landlord to exercise reasonable care in all situations PETERSON V. SUPERIOR COURT OF RIVERSIDE COUNTY STRICT LIABILITY  Becker v. IRM (prior to supreme court case) held that a residential landlord may be strictly liable for an injury to its tenant cause by a defect in a leased dweling  Policy reasons: o i. imposing strict liability will result in a reduction of dangerous conditions (like in products liability) o ii. imposing strict liability effectuates tenants‟ expectations and their presmises are safe o iii. landlords are in a better position to bear the costs of injuries stemming from defects  PETERSON OVERRULES BECKER Why is Becker overruled? - Court doesn‟t think it‟ll act as a deterrent o Landlord can‟t jump back up chain of manufacturing - Landlord could take every reasonable possible step and still be liable o Tenants cannot expect that landlord do not know about defects and be liable for them - Loss spreading cannot the sole justification for imposing strict liability on the landlord LA is only jurisdiction that may hold landlord strictly liable

TRENTACOST V. BRUSSEL

LIABILITY FOR CRIMINAL ACTS—courts are divided on this issue
 TRENTACOST V. BRUSSEL o “Negligence”—landlord can be held liable for creating an „unreasonable enhanced”‟ risk of loss resulting from foreseeable criminal conduct o Warranty of habitability—obliges landlord to furnish reasonable safeguards to protect tenants from foreseeable criminal activity on the premises FELD V. MERRIAM (PA Supreme Court) 11

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o In PA, landlords generally are not liable for criminal injuries  Criminal acts are too unpredictable; 3rd person is unpredictable  Landlords cannot be expected to protect tenants and cannot be expected to be held liable for activity on the premises  Court leaves open if landlord provides security, but does so negligently, he/she can be held liable

p. 73 PRINCIPAL PROBLEM It could be argued the diving board was in a common area Warranty of Habitability—NO—b/c it is not a vital area In a commercial situation, it could be warranty of suitability Negligence Breach of duty of regular care Courts have moved towards ordinary principles of negligence

09/21/04
MOTIVES IN SELECTING OR REMOVING TENANTS P. 96, 2. Principal Problem Tamela Harris is currently a tenant; you argue both requirements of “three times-rent” and only earned income are unreasonable and they discriminate against women and racial minorities  Is she likely to succeed? o She is under the Unruh Act—people protected from discrimination based on group o Landlord isn‟t excluding based on her sex, it‟s b/c of her income Two requirements are different  1. 3 times rent 2. how you get your money

KRAMARSKY V. STAHL MANAGEMENT Nothing illegal about discriminating against lawyers as a group Reads statute narrowly

MARINA POINT V. STEPHEN WOLFSON Court says Unruh Act protects all arbitrary acts of discrimination Even though children in this case are not listed as group of people against which are discriminated Views statute as being illustrative as opposed to restrictive 12

Just b/c your proceeding from an economic standpoint, doesn‟t mean you are w/in boundaries of Unruh Act PRINCIPAL PROBLEM is a different kind of case b/c Leach Landlord is discriminating based on type of payment, while in MARINA, they are discriminating against characteristics of people

CA Supreme Court addressed PRINCIPAL PROBLEM issue (after Marinia) saying 3-times-rent requirement is good KRAMARSKY and MARINA are under State Statutory scheme What about Federal? FAIR HOUSING ACT: FHA EXAMPLES: 1.) FOR RENT: 2.) WANTED: 3.) ROOMMATE WANTED:

09/23/04
FED US SC US CA US DC STATE Highest Court CA Trial Court

LANDLORD’S MOTIVES IN SELECTING OR REMOVING TENANTS STATE STATUTES - unless proscribed by statute, a landlord has a right to be selective and to reject a prospective tenant for any reason - many states have statutes that prohibit a landlord from refusing to lease property b/c of race, religion, color, national origin, or disability o illustrative broad v. restrictive interpretation  MARINA—broad  KRAMARSKY—restrictive It‟s going to depend on whether state has a discrimination statute, what it says, and how it‟s interpreted whether you bring an action under a state statute State‟s highest court is final interpreter of state statutes MARINA—CA Supreme Ct. is final word on Unruh Act You can bring state law claims in federal court and you can bring federal law claims in state court Usually Plaintiff picks forum, absent some kind of statute 13

FEDERAL STATUTE  Federal Fair Housing Act

If it‟s a federal statute, US Supreme Court is the final seer

FEDERAL FAIR HOUSING ACT - federal statute you can bring claim of discrimination under

FHA EXAMPLES Which ones violate fair housing act?  For rent: Furnished basement apt in a private white home. o § 3604 (c) says you can‟t advertise o Have to figure out if it conveys to reader a racial preference  If it does, it violates Fair Housing Act  Exemptions under 3604, excludes advertising o If she didn‟t rent to someone based on their color, she is exempt under § 3604  Exception is to protect private ownership  Problem is she can‟t advertise Wanted: Female to share lovely 2 br/2 ba apartment near campus and train line o Advertised discrimination by sex is in violation of FHA o This one is literal reading that Congress probably never had in mind; doesn‟t have same concerns w/this one as you do the first Roommate Wanted: 2 Female law students seek non-smoker to share 2nd/3rd floor house in Ardmore o Almost no court would find this case would violate FHA

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09/28/04
LANDLORD‟S MOTIVES IN SELECTING TENANTS FAIR HOUSING ACT Exceptions, especially if owner occupies one of the rooms in the house Advertising discrimination is in violation of FHA FHA EXAMPLES 1. To ordinary reader, the natural interpretation of private white home is that only whites were wanted 2. Should same reasoning apply for this one seeking female to share apt? 14

a. One could argue the 2nd one is different from the 1st—perfectly rational reason for woman to seek another woman roommate; hard to find a gov‟t interest to prohibit that reason; we don‟t have same type of concerns w/2nd as we do w/the 1st b. Isn‟t this like the Starrett housing case?

USA V. HOUSING STARRETT CITY ASSOCIATES Housing argued if they didn‟t have those standards, there would be white flight from the area b/c of discrepancies US Gov‟t brings suit under FHA No discriminatory purpose, so why the violation of FHA? Court says housing practices motivated by discrimination and disproportionately affect minorities Dissent says they look at this program as being a model for integration Purpose of quotas was to have an integrated community What if Starrett was located in an all-white suburb and they gave preference to minority tenants? Would court have struck it down? Court says there is a problem and they use it temporarily to correct past discrimination and it is sort of a one-time thing Court has three problems w/Starrett‟s practices: - practices were not temporary - practices weren‟t needed - don‟t provide another access Didn‟t promote access for minorities Title VII says you can show discrimination by showing discriminatory impact * FHA prohibits discrimination based on various categories Federal courts view it narrowerily * How can you show discrimination? - Discriminatory intent, or - Discriminatory impact—does it disproportionately affect minorities (or other categories) Courts seem to be divided on whether you can violate the FHA by impact alone SUMMARY Two approaches to interpreting Illustrative—marina point; prohibit all arbitrary discrimination Restrictive—kamarsky—you have to fall in one of the categories Courts interpret the FHA must more narrowerily

ASSIGNMENTS AND SUBLEASES 15

Rules tend to be straight-forward, but technical EXAMPLES PART 1 Absent a description in lease, tenant can transfer interest in part - If tenant makes a transfer of all of the rights—it is an assignment; full remainder of term - If tenant transfers less than all of the rights—it is a sub-lease; part of the property for less than the whole time o Transfer right of possession for less than full remainder of term Determines whether landlord ultimately can sue 1.) Assignment—Grace transfers remaining interest to Jack 2.) Sub-lease—Grace transferred 3 months EXAMPLES PART II 1.) Rachel leases to Ross, Ross assigns to Joey, Joey assigns to Chandler. a. What is the liability for rent in a suit by Rachel against tenant Joey, before Joey assigns to Chandler? Can Rachel sue Joey for rent? i. No direct contract between Rachel and Joey; cannot proceed on contract basis ii. YES, b/c it‟s an assignment, the assignee stands in the shoes of the original tenant; there is privity of the estate; each is liable to the other for all covenants run with the land 1. As assignee, you have a certain relationship with the landlord a. While in possession of the land, certain provisions apply to you i. Covenants to pay rent run w/the land (covenant to pick up mail does not) ii. Covenants to do/not to do a physical act run w/the land (i.e. to repair) 2.) What is the liability for rent in a suit by Rachel against Joey, after Joey assigns to Chandler? a. After assignment goes to Chandler, Joey has no liability to Rachel i. AD Juilliard v. American Woolen Co. case—assignee is liable only for time privity exists 3.) What is liability for rent in a suit by Rachel against Ross, after Ross has assigned to Joey? a. You‟re liable under contract theory regardless of assignment b. Unless landlord lets original tenant out, that person is always bound by contract, not estate theory i. Italian Fisherman

ITALIAN FISHERMAN They never let Italian Fisherman out

EXAMPLES PART II Donald leases an apt to George for one year starting Jan 1. In May, George transfers June, July, and August to Carolyn. Assume that during these three months no one pays rent to Donald. Donald wants to sue Carolyn. 1.) Can Donald recover against Carolyn? 16

2.) Can Donald terminate the least w/George for nonpayment of rent?

09/30/04
ASSIGNMENTS AND SUBLEASES EXAMPLES PART II Joey can still be liable as assignee under privity relationship before Joey assigns to Chandler (only liable for rent when he is in privity of estate w/landlord) Ross is always liable until he is let out EXAMPLES PART III 1. Can Donald recover against Carolyn? i. NO, there is no direct contractual relationship between Donald and Carolyn ii. Original leasee is still in privity w/landlord 1. When you have a sublease, tenant pays directly to subleasee 2. Can Donald terminate the lease w/George for nonpayment of rent? i. YES, sublease falls w/lease at that point; automatically terminated at that time Subleasees can assume rent covenant, but that assumption is not implied, it must be expressed If that occurs, subleasee is bound and becomes personally liable to landlord

SUMMARY  A landlord may be able to enforce promises made in a lease against assignees/sublessees under: o Contract Theory—if subleasee/assignee expressly assumes obligations under master lease, that party is bound by agreement to perform o Estate Theory—landlord can enforce convenants running w/land, covenant to pay rent, against assignees during period they‟re in privity of estate w/landlord  Landlord cannot enforce against sublessees b/c sublessee is not under privity of estate w/landlord

TENANT‟S RIGHT TO ASSIGN/SUBLEASE 2. Principal Problem p. 132 17

Absolute prohibition against assignments Lease provision against consent, can be modified Which is stronger for landlord? Absolute prohibition Although these are narrowily construed

NEWMAN V. HINKY-DINKY Majority rule says landlord can arbitrarily can withhold consent Minority rule says landlord cannot withhold consent w/reasonable and good faith objection Court adopts the Minority Rule What factors does the court look to? - financial responsibility - assignee‟s/sublessee‟s suitability for the particular property - legality of proposed use - need for alteration of premises - nature of occupancy Newman did not have good faith and reasonablenss NEWMAN is commercial PRINCIPAL PROBLEM is residential How would you judge reasonableness? Can you use same criteria court uses in Hinky Dinky case? YES State and Federal statutes come into play about accepting/rejecting an assignment What‟s ability of landlord to say “no” to assignment/sublease? Court says in Rinky Dinky it‟s the good faith

USA V. EPSTEIN Court says it‟s important for landlord to be able to select so they can protect the value of their land Landlord should have ultimate say b/c they get the land back If you apply this case to Principal Problem, landlord could withhold consent for any reason (as long as he doesn‟t violate any rule)

SUMMARY: 18

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Traditional Rule: EPSTEIN (Majority Rule) Minority Rule: Good faith reasonable objection (Rinky Dinky) Restatement (Second) of Property: “not reasonable unless freely negotiated provision in lease gives landlord the absolute right to withhold consent” o From Minority Rule o If you have a reasonableness requirement, it applies in most states

10/05/04
LANDLORD’S REMEDIES FOR TENANT’S BREACH Drugger‟s first defense on why he shouldn‟t pay anything If he accepts surrender, he‟s out in terms of all the rent How do we determine if landlord has accepted surrender? He remodeled for Intermountain and leased property By leasing to someone else, he is violating the lease; starting treating property as his own and starting accepting surrender Court says it‟s whether or not landlord intended to accept surrender Damages/remedies Two views (reed/mutual case) 1. Traditional—landlords have duty to mitigate a. Forces a landlord to mitigate and that‟s not fair b/c it‟s a breach by the tenant b. Court says today‟s society has changed, commercial leases, makes sense to mitigate c. Discourages contractual penalties d. Being able to mitigate the unfairness imposed on landlord by requiring a certain level of mitigation requirements i. Reasonable steps commercially 2. landlords have no duty to mitigate Landlord has burden to prove he took reasonable mitigation methods Different ways to resolve: Multiple cause of action approach—landlord can recover righst that have accrued through the time of trial Anticipatory Breach—landlord can bring suit before the end of the lease; looks to see contract rate, then takes off fair market value of what property would rent for Court says this is speculative in determining damages Retain Jurisdiction—court keeps case, landlord keeps coming back and then comes back to the court and makes a showing of whether a reasonable mitigation effort Court ultimately settles on retain jurisdiction—minority Most courts follow anticipatory breach b/c it settles case quickly once and for all Courts take a different approach in Isbey and Ruud Places burden on tenant to prove landlord took reasonable mitigation efforts 19

Landlord is holding all the information and in much better position to tell if they made reasonable efforts ISBEY Defendant‟s entered into lease for 5 years for doctor‟s office and dialysis unit and for nothing else Defendant‟s move and want permission to sub-lease to medical supply company Landlord says no Court says landlord can withhold consent for any reason so refusal to sublease was ok Court says tenant needs to show landlord didn‟t undertake reasonable mitigation efforts What are damages if landlord fails to mitigate? Will that preclude landlord from getting any rent? No Damages would be the contract amount - fair market value = damages if no mitigation Damages if landlord does mitigate? PRINCIPAL PROBLEM In principal problem, lease specifically says space will be used only for drug store Restriction in lease isn‟t all that important at this point in time Landlord didn‟t do a lot, like they did in the Ruud case

SUMMARY TRAIDITIONAL REMEDIES - allow premises to remain vacant and sue to recover rent owed - accept surrender o when landlord accepts surrender, tenant is no longer liable o acceptance of surrender can be implied, doesn‟t have to be express  if landlord enters into new lease, or remodels, etc., court might be clear there was an acceptance of surrender  key is if landlord intended to accept surrender - relet the premises as tenant‟s agent o if landlord lets premises like this, he can recover rent from original lease and rent collected for new person  some jurisdictions require the lease to expressly include this remedy  some other jurisdictions require landlord to first notify the tenant of its intent to relet  without doing either, landlord runs risk of accepting surrender MODERN TREND - landlord has a duty to mitigate damages o landlord must take steps as would be xpected of reasonable landlord letting out similar property under similar market conditions  basically act as a reasonable landlord - burden of proof o some courts put it on landlord o other courts put it on tenant to show landlord did not take reasonable mitigation efforts 20

REVOERY OF FUTURE RENT - multiple cause of action approach o landlord can only recover rent to time of trial and must do a new cause of action for rents due as they accrue  cannot get future rents, must do a new cause of action each time - anticipatory breach approach o can recover present value of contract; prsenet amount due under the lease discounted to rpesent value - retained jurisdiction approach o provides landlord can get accrused rents through trial and future rents by returning to court to show landlord has taken reasonable mitigation efforts, then landlord can order rents that have become due at that point - rent acceleration clause o some leases provide entire balance of rent is due and payable immediately upon default of tenant o a few courts have held this clause is invalid as a penalty o many other courts have upheld the validity of such clause  including Pennsylvania o in situation where rent is accelerated, if tenant pays landlord, landlord is not entitled to possession to premises o a few courts have held if contract provides both acceleration and termination of the lease, they can do both look to see if jurisdiction follows traditional view or modern trend and determine what landlord‟s obligations are traditional—no duty to mitigate modern—duty to mitigate and who has burden of proof? Landlord or tenant?

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10/12/04 ESTATES AND FUTURE INTERESTS
Future estate (“future interest”) is an interest in land which 1. Maybe become possessory, but which is not now possessory 2. Is “a segment of ownership measured in terms of duration” It arises today in land transactions, particularly in the area of wills and trusts H-W | A-B-C-D If you die, half could go to H and H split between ABCD Set up some kind of interest to give spouse to dip into it in the event an emergency arises Life estate w/remainder going to surviving children PRESENT AND FUTURE ESTATE Estate—nature and extent of interest a person has in property Present possessory estates—estates that a person presently have or may become possessory in the future; somebody always has to have the present possessory estate Future estates 4 categories of Present Estates: 1. Fee Simple Absolute 2. Defeasible Fees - Fee Simple Determinable - Fee Simple Subject to Condition Subsequent - Fee Simple Subject to an Executory Limitation 3. Fee Tail 4. Life Estate

Fee Simple Absolute—largest estate recognized; invests the holder w/full possessory rights, now and in the future; it can be sold, divided, devised, or inherited and it has an indefinite or potentially indefinite duration. “To A and his heirs”; p. 167 says you just need “from O to A” Where do you see this? 22

Anytime you buy a house Defeasible Fees—have the potential for infinite duration, but they can be terminated upon the happening of a stated event; could go on forever, like fee simple absolute, but different b/c they can come to an end at some point if something happens Three types:  Fee Simple Determinable—an estate that automatically terminates on the happening of a stated event and reverts to the grantor o “for so long as”; “until”; “while”; “during” o Whenever grantor conveys fee simple determinable, the grantor retains a possibility of reverter  Future interest is a property right that entitles them to ownership at some future point in time  Possibility of reverter—arises automatically and doesn‟t have to be expressly retained by grantor and are transferable EXAMPLE 1. O to A so long as no alcoholic beverages are consumed on the premises. Could last forever if no one ever consumes an alcoholic beverage; but if someone does, then O becomes owner again If it‟s created as a possibility of reverter, it remains that, it doesn‟t turn into an executory interest Fee Simple Subject to a Condition Subsequent—condition subsequent is an estate in which the grantor reserves the right to terminate the estate upon the happening of a state event; grantor has to take some action o “but if”; “upon condition that”; “provided that” EXAMPLE 2. O to A and his heirs, on the express condition that the premises are never to be used by A for the sale of liquor, and in the event that they are so used, then O or her heirs may enter and terminate the estate hereby conveyed. A has a fee simple subject to a condition subsequent What happens if condition is broken here? It may be terminated, not automatically terminated; O has the right to terminate a/k/a “right of entry/power of termination”; future interest O has is the right to terminate as grantor is the right of entry/power of termination; since grantor can elect to terminate, the grantor can waive it; if future interest is made instead to 3rd party, it is called an executory interest Fee Simple Subject to an Executory Limitation—is an estate that, upon the happening of a stated event, divests in favor of a 3rd person rather than the grantor EXAMPLE 3. O to Church A, provided, however, that if the premises shall ever cease to be used for church purposes, title shall pass to the United Way. What does Church A have here? Has a fee subject to limitation Does O retain anything? No, they pass it on to the 3rd party; b/c grantor reserves no interest, grantor doesn‟t have power of termination and that interest is created in the 3rd party, the United Way; United Way‟s power is executory interest EXAMPLE 4. O to Church A for so long as the premises are used for church purposes, and if they shall ever ceased to be so used, then and in that event to the United Way. What does Church A have? Fee simple subject to an executory limitation b/c it says “for so long as” Who has future estate? 23  

The United Way What is their interest called? Executory interest First you decide who has present interest, like who has the property now, then you figure out the future interest What if it is unclear and there are not the magic words? The preference would be for courts to construe it as a fee simple subject to a condition subsequent if it‟s between that and the fee simple determinable FEE TAIL Fee Tail—an estate where inheritability is limited to lineal heirs Key Words: “from O to A and heirs of her body” ** Most jurisdictions have abolished fee tail by statute ** LIFE ESTATES Life Estate—an estate that‟s measured by the life or lives of one of more persons; usually measured by life of the grantee (but doesn‟t have to be) EXAMPLE 5. O to A for life. EXAMPLE 6. O to A for life or until he remarries This is a determinable life estate; analogous to fee simple determinable b/c it ends when A dies or remarries Life Estate Pur Autre Vie—life estate measured by someone else other than the grantee Can be created by grantor EXAMPLE 7. O to A for the life of B. Life estate measured by someone other than the life tenant EXAMPLE 8. O to A for life. A then conveys her interest to B. Measured by A‟s life, not B‟s life O has a reversion; O owns whole fee simple absolute, so there has to be a future interest b/c it‟s less then a fee simple absolute; b/c grantor has the future interest here it is called a reversion When does B‟s estate come to an end? When A dies Who has the present estate? B What you‟re looking to see is: - Who has property now? How has the present estate? It will be a: o Fee simple absolute o Fee simple determinable o Fee simple subject to a condition subsequent o Life estate

10/14/04
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PRESENT AND FUTURE ESTATES If you give someone an engagement ring, can you recover the ring if you don‟t get married. Gift subject to right, give ring so long as she marries him. If she doesn‟t, the ring goes back to him. If they don‟t get married, the ring goes back. What happens if he breaks off the relationship? If it‟s implied contract, what happens if the donor of the ring and the guy calls it off, should he be able to get the ring back? If donor breaks the contract, can the donor bring suit? If contract law governs this transaction, then to some extent it may be fault based If donor breaks up w/donee, donor shouldn‟t be able to get the ring back But if donee breaks up, she is obligated to give the ring back b/c she breached the contract In property law, it doesn‟t matter, b/c it is like a fee simple determinable to condition subsequent If condition is not met, the ring has to be returned, no matter how the condition wasn‟t met State law matter, states going different ways; some say if donor breaks up, donee gets to keep the ring; but other courts, in cluding PA and NJ rule it doesn‟t matter who breaks engagement, if it‟s broken, the ring has to be returned b/c it‟s a conditional gift Minority view (NY) says it‟s a gift and do not apply contract or property principles and he‟s not getting the ring back * Legal principle matters * FUTURE INTERESTS Future interest—an estate that does not entitle the owner thereof to possession immediately; it gives the holder only the right or possibility of future possession of the estate. EXAMPLE 9. O conveys Blackacre to Villanova University so long as Blackacre is used for school purposes. What does Villanova have and who has future interest? Villanova has a fee simple determinable and future interest is O, b/c there is a reverter Three future interests retained by grantor: 1. Possibility of Reverter a. Possibility of Reverter—an interest which is retained by the grantor who conveys a fee simple determinable EXAMPLE 10. O conveys Blackacre to Villanova University, but if the University ceases to be used for school purposes, O may reenter and retake the property. Villanova has a fee simple subject to condition subsequent and power of termination 2. Right of entry/power of termination is the interest retained by the grantor who conveys a fee simple subject to a condition subsequent that operates in the grantor‟s favor. 3. Reversion a. Reversion—the residue left in a grantor who transfers an estate which is smaller than the estate which she had; when the owner of an estate transfers a lesser estate, the future interest that the owner keeps is called a reversion i. They are divisable, inheritable ii. Do not expressly have to be reserved iii. Can arise by operation of law EXAMPLE 8. O to A for life. A then conveys her interest to B. O has a reversion b/c that‟s the future interest left in O 25

FUTURE INTERESTS CREATED IN THIRD PERSONS  REMAINDER o A future interest in a third person that can become a present estate upon the natural expiration of the preceding estate  If there is no life estate, no possibility of a remainder  Must be expressly created in the same instrument creating the preceding possessory estate  It cannot cut short or divest a prior estate  It cannot follow a time gap after a preceding estate EXAMPLE 11. O to A for life, then to B and his heirs. What does B have? B has a remainder EXAMPLE 12. O to A for life and then to B and his heirs one day after A‟s death. What do the parties have in this case? B can‟t have a remainder b/c there is a time gap Upon A‟s death, it goes back to O O has a reversion b/c it can‟t be possibility of reverter b/c it‟s not fee simple determinable O‟s reversion expires B has executory interest EXAMPLE 13. On June 1, O conveys Blackacre to A for life. On June 3, O conveys “all of my right title and interest in Blackacre to B.” What do the parties have? What does B hold? When A dies, property goes to B Not a remainder B has O‟s reversion—once a reversion is always a reversion until it becomes an executory interest Types of Remainders Vested remainder Vested remainder is one that throughout its continuance, is ready to become a possessory estate whenever and however the preceding estate terminates. It is given to an ascertained person and is not subject to a condition precedent Future interest holder will get property upon expiration of life estate; it‟s going to be an ascertained person and not subject to any conditions preceding Three kinds of vested remainders: 1. Indefeasibly or absolutely vested remainder Is a remainder that is created in one ormore ascertained persons that ics certain to become possessory whenever and however the preceding estate ends (i.e. no conditions precenednat to beomcing possessory other than the natural expiration of the prior estate) and that cannot be defeated of abridged. EXAMPLE 11. When A dies, B will get property and when B gets it, he has fee simple absolute 2. Vested remainder subject to open (class gift) Is a remainder created in a class of persons that is certain to become possessory upon the natural expiration of the prior estate, but is subject to diminution by reason of other persons becoming entitle to share in the remainder You will get property, but it gets reduced EXAMPLE 14. O to A for life then to the children of B. Assume that A and B are living and B has one child, C 26

- As each child is born, C shares get reduced - Vested remainder b/c we know C is going to get something upon life tenant‟s death, but it‟s not determinable yet until some of the class closes - O has nothing 3. Vested remainder subject to complete defeasance Is a remainder created in one or more ascertained persons that is certain to become possessory upon the natural expiration of the preceding estate, but has no certainty of retaining possession permanently You will get property when life tenant dies, but you could lose it if condition happens EXAMPLE 15. O to A for life, then to B and his heirs, but if B dies unmarried, then to C and his heirs. - B gets property when A dies - C has an executory interest condition is on the backside—you could lose property if condition happens

10/19/04
PRESENT AND FUTURE ESTATES PART III CONTINGENT REMAINDERS  is a future intrest in a transferee that is nto certain to take effect whenever and however the prior estate ends, but which possibly will become posessory upon the expiration of the preceding estate. It is contigent because: o it is created in unborn or unascertained persons, or  until remainder is ascertained, there is no one to take possession of preceding estate, should it come to and end o * it is subject to a condition precedent EXAMPLE 16. O to A for life and then to the children of C. (Assume C is childless at the time of the grant) A has a life estate Children of C have a contingent remainder b/c they are unborn children at the time of the estate Once D is born, D has a vested remainder subject to open b/c all D has to do is be born EXAMPLE 17. O to A for life, then to B‟s heirs. (Assume B is alive) B‟s heirs have a contingent remainder b/c they are unascertained persons; b/c B is living, B‟s heirs don‟t have anything; you don‟t ascertain heirs until someone dies; no one is an heir of the living EXAMPLE 18. O to A for life and then to B and his heirs if B marries C. Contingent remainder subject to condition precedent b/c condition has to be satisfied before B has a right to possession EXAMPLE 19. O to A for life, then to B and his heirs if B survives A, and if B does not survive A, to C and his heirs. A has a life estate B has a contingent remainder C has an alternative contingent remainders They are contingent on B surviving A 27

* If first future interest is a contingent remainder, subsequent future interest in a third party is going to be a contingent remainder * EXAMPLE 20. O to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs. A has life estate B has a contingent remainder upon condition D has an alternate contingent remainder What if B isn‟t unmarried when A dies? When life estate ends, condition might not be met If everyone‟s alive, A would have a life estate, and the other two parties would have contingent remainders Problem is what if A dies, B is alive, C is alive, not married, and D is still in picture Minority would say B‟s interest would be destroyed under that rule Majority would say it doesn‟t effectuate intent of grantor, to allow D to take the property, but could lose property if B marries C, so D‟s interest is a fee simple subject to an executory limitation Common law decided “destructibility of contingent remainders” Unless reminder is vested at or before termination of estate‟s prior possession, it should be destroyed; unless condition is met when life estate comes to an end, life estate is destroyed So, B‟s interest is gone and D automatically takes possession as next remainder What‟s the problem w/the “destructibility of contingent remainders” rule? Most jurisdictions have gotten rid of this rule, b/c it ineffectuates w/the intent of the grantors Minority view would mean D has fee simple absolute Question becomes, what happens to property when A dies and B is unmarried at A‟s death if C is still alive? 1. O has a reversion and property reverts back to O and if condition is met, then it springs to B (springing executory interest), or 2. O never intended to keep any interest b/c O didn‟t write it in, so it goes to D, except that D could lose the property if B marries C a. Courts probably follow this one DIFFERENCE BETWEEN CONTINGENT REMAINDERS AND REMAINDERS SUBJECT  Where the condition is - Contingent remainder if condition is on front end - If condition is on the back end, like if you get property but can lose it, then it is a vested remainder subject to defeasance

EXECUTORY INTERESTS  Executory interests are future interests in third parties that either: 1. divest or cut short a transferree‟s preceding estate (shifting executory interests), or 2. follow a gap in possession of cut short the grantor‟s estate (springing interests) Two type of remainders: 1. Shfiting execuroty interest a. Divests the transferee 2. springing execuroty interest a. follows a gap in possession or divests the transferor EXAMPLE 21. O to A and his heirs, but if B returns from Canada, then and in that event to B and his heirs 28

What do parties have here? A has a fee simple subject to executory limitation B has a shifting executory interest b/c interest is divested of another transferee EXAMPLE 22. O to A for life, remainder to C and his heirs, but if C predeceases B, to D and his heirs. What do parties have here? A has a life estate B has a shifting executory interest C has a vested remainder subject to complete the feasance D has a shifting executory interest Condition on back end and doesn‟t need to be met for C to get property What happens if C dies before A? Assuming A is alive, then it goes to D EXAMPLE 23. O to A when and if A marries B. Who has property now? O has the present estate; O has the property now; O is fee simple to subsequent limitation; O can lose property if A marries B A has a fee simple subject to a condition subsequent; some kind of determinable A has a springing executory interest EXAMPLE 24. O to A for life, and one year after A‟s death to B. A has a life estate B has a springing executory interest O has a reversion EXAMPLE 25. O to A for life, and on A‟s death to B. But if B predeceases A, on A‟s death to C. This answer goes on how we turn interest; we do it clause by clause A has a life estate C would have an executory interest Condition subsequent language (but if) Rules of construction * Remainder can‟t follow a fee simple of any kind If interest follows a fee that is held by third prson we know it‟s an executory interest * If first future interest is vested remainder subject to divestment, following future interest in 3rd party is going to be an executory interest

10/21/04 RULE AGAINST PERPETUITIES
  Rule seeks to limit the power of one generation to restrict future generations use of property o Rule is not logical No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest o Interest in property is void if there‟s any possibility however remote that the interest may vest more than 21 years after some life in being at the creation of the interest  Curtail future interests that may

EXAMPLE 1. O to A and her heirs as soon as the property is zoned residential. 29

A has a springing executory interest b/c it comes from the grantor O has a fee simple subject to executory limitation A will get property when its zoned residential, which could be never; interest could go on forever RULE would make the future interest INVALID To understand the Rule  1. No interest is good… a. Applicability of the Rule 2. … unless it must vest, if at all… a. meaning of “must vest” 3. … not later than 21 years after some life in being at the creation of the interest. a. Determining the measuring of validating life  APPLICABILITY OF RAP o Contingent remainders  Contingent remainders must be certain to vest in possession, to become a vested remainder, or to fail within the measuring period  EXAMPLE 4. O to A for life and then to B and his heirs if B survives A, and if B does not survive A, to the United Way  United Way and B have contingent remainders  B‟s remainder contingent on surviving A  United Way‟s remainder contingent on B not surviving A o Their interests are good—it will vest in possession when A dies; condition will vest in A‟s lifetime or B‟s lifetime o A can be life in being at creation of interest; at A‟s death or w/in 21 years of A‟s death o Executory interest  Must be certain to take possession or fail within the measuring period  EXAMPLE 5. O to A and her heirs, but if liquor is ever sold upon the premises, then to B and his heirs.  A has a fee simple to executory limitation  B has an executory interest o INVALID b/c it could possibly be vested outside of the period  EXAMPLE 6. O to A and her heirs, but if A herself ever sells liquor on the premises then to B and his heirs  It‟s going to happen or not going to happen in A‟s lifetime  EXAMPLE 7. O to Nova Univ, but if the property is not used for school purposes at any time within the next 20 years, then to A.  A has a fee simple to executory limitation  20 years saves the gift b/c it says it‟s going to happen or not going to happen within 20 years o VALID o Vested Remainders Subject to Open  Subject to open is deemed vested for purposes of RAP if, within the perpetuities period  The class is closed, and  All conditions are precedent for every member of the class have been satisfied o Question is when will class close? o And, have conditions for every member of the class been satisfied? o Option/rights of First Refusal 30

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RAP DOES NOT APPLY TO o Indefeasibly Vested Remainders o Vested Remainders Subject to Complete Defeasance o Interests retained by the grantor, such as (i) reversions; (ii) possibilities of reverters, and (iii) rights of entry o Charity to Charity Exception  Charitable trusts thought to exist forever and not violate RAP; we want to further gifts to charities, it‟s a policy decision  Both possessory estate and gift-over have to be charities o Present Estates

EXAMPLE 2. O to A and her heirs so long as liquor is never sold on the premises. A has a fee simple determinable O has a future interest and possibility of reverter RAP does not apply to possibilities of reverter, so it‟s GOOD EXAMPLE 3. O devises Blackacre “to the School Board so long as used for school purposes, and when the land shall not be used for school purposes, to the Red Cross.” School Board has a fee simple determinable Red Cross has a shifting executory interest b/c it divests from transferee (can‟t be a remainder b/c there is no life estate) Charity to Charity Exception says this is GOOD What if it was to Bob instead of Red Cross? It would be INVALID WHEN PERIOD BEGINS TO RUN: Validity begins when lives are created; persons have to be alive at the time the interest is created; when someone makes an irrevocable transfer, that‟s when perpetuities begins to run  Wills o Perpetuities period begins to run on the date of the testator‟s death (b/c he can keep changing will until he dies)  Revocable Trusts o Perpetuities period begins to run on the date the trust becomes irrevocable o This will be at the settlor‟s death or when the trust is amended to make it irrevocable  Trust is arrangement where legal titles are held by one party for the benefit of another  Example: I want to give money to my son should I die; could do it by will, but don‟t want to give him that money when he‟s 2, don‟t want to appoint a guardian; you have a trustee, banker, Uncle Bob, to hold money for the benefit of my son to be paid out when he is 18 o They can be revocable so during my lifetime it‟s paid out; payable to nephew, but if you get mad at him, you can take it back  Irrevocable Trusts o Perpetuities period beings to run on the date the trust is created  Deeds o Perpetuities period begins to run on the date the deed is delivered with the intent to pass title  Once deed is passed, B has to be alive on that date b/c perpetuities begin from that point MEANING OF MUST VEST  For a contingent future interest to be valid, it must vest in interest, if it vests at all, within the lifetime of some person who was alive at the creation of the future interest plus 21 years after such person‟s death 31

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It need not be demonstrated that it has to vest, but if it should vest, it must occur within the period of the rule o Relevant question is if it does vest o Fixed right of present or future enjoyment of property

10/26/04
RULE AGAINST PERPETUITIES—PART II EXAMPLE A. O conveys Blackacre to A and her heirs so long as Blackacre is used as a farm. O then conveys any interest he has remaining in Blackacre to B. Are any of the interests void under the RAP? A has a fee simple determinable B has O‟s possibility of reverter EXAMPLE B. O conveys Blackacre to A and her heirs so long as blackacre is used as a farm, and if it is not used as a farm, to B and his heirs. Any interests void under RAP? B now has executory interest Yes, it could be centuries away before it‟s stopped being used as a farm EXAMPLE C. O devises Blackacre to Red Cross so long as it I sused to store emergency supplies, and when the land shall not be used to store emergency supplies, to the United Way. No RAP voids b/c it‟s charity to charity exception IDENTIFYING THE MEASURING LIFE  Any life that exists at creation of the interest can be used to prove the validity of the interests so long as the life is in some way connected with the vesting of an interest. o 21 year period is measured from death of some person who was alive at the time of the conveyance/the time perpetuities period began to run; sometimes its specified by an instrument; law allows any life to approve validity of interest so long as that life‟s connecting w/vesting of the interest so that vesting cannot happen more than 21 years after death of that person; you can use any life but life has to in some way be connected w/the vesting of the interest so the vesting cannot happen more than 21 years after the death of such person o Measuring life need not be given any beneficial interest; doesn‟t have to be expressly referred to in the instrument, but there has to be some kind of connection that assures vesting of failure in perpetuities o EXAMPLES:  Beneficiaries, themselves  In a gift of remainder to Angel if Angel reaches 21, Angel can be measuring life—Angel will or not reach 21 in her lifetime  People who can affect the identity of the beneficiary/beneficiaries  Gift of remainder to Buffy‟s children, Buffy can be measuring life—we‟ll know who all Buffy‟s children are when Buffy dies  People who can affect any condition precendent  Gift of reminader to Clark if Lex passes bar exam; Lex can measuring life— condition for Clark to receive property is for Lex to pass bar exam which he will or won‟t do in his lifetime o To be a validating life, the person must be alive at the beginning of the perpetuities period (i.e., when the interest is created) 32

o Is it certain that within this person‟s (or persons‟) lifetime or 21 years thereafter the interest will vest or fail?  If YES, then it‟s good under RAP  If NO, then you look for someone else; when you run out of people, it is void under RAP; if there is no life to save the gift, then it is void under RAP EXAMPLE 8. O to A for life, then to such of A‟s children as attain the age of 21. Assuming A has no children who are 21, what do they have? A has a life estate vested in possession; A can be measuring life, b/c all of A‟s children will attain 21 or not w/in 21 years of A‟s death Children have a contingent remainder EXAMPLE 9. O‟s will provides “to my grandchildren when they reach 21.” Grandchildren have a springing executory interest VALID, parents are measuring life; grandchildren can‟t be measuring life b/c they aren‟t alive and we wont‟ know if they are What happens if we change it to a present conveyance? “O says to my grandchildren when they reach 21” Still executory interest—VOID under RAP Perpetuities begins to run when O dies, we will know who all of O‟s children are; b/c O can have more children, children can‟t be measuring lives “remote possibilities test” if you have a situation where it might not vest or fail, interest is void What happens to posthumolously born child? Perpetuities is held for them or they are considered in existence at that point Frozen embryos don‟t count as heirs EFFECT OF AN INVALID INTEREST  General Practice: “the bad part of the limitation is simply struck out and the rest of the limitation is given effect.” o Could create a new reversionary interest in grantor or it could enlarge preceding estate in grantee EXAMPLE 12. O to A for life, remainder to A‟s children and their heirs when they reach 25. A has a life estate Children have a contingent remainder We would strike invalid interest, remainder to A‟s children when they reach 25, A left w/life estate and O has a reversion EXAMPLE 13. O to Villanova University so long as the property is used as a law school, and then to A and her heirs. Villanova University has a fee simple subject to executory limitation A has a shifting executory interest Strike As interest and then nova have fee simple determinable and O has the possibility of reversion EXAMPLE 14. O to Nova, but if property is ever used as a law school, then to A and her heirs. Strike invalid interest but if property… Nova would have fee simple absolute Clause “then to A and her heirs” condition subsequent depends on presence on provision for someone to take the next gift B/c conditional language is attached to A taking property, it also fails A‟s interest was dependent on language, it was a part of the gift to A and failed and Nova would have fee simple absolute What‟s problem w/giving Nova fee simple absolute from Os perspective? O may never have intended for Nova to get property outright, if I can‟t have this restriction, then I don‟t want them to have property at all 33

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Infectious Invalidity o If court finds invalid interest was an integral part of transfer, that if it falied, transferor valid interest to also fail, court will let valid interest fail; bad interest will affect good interest and the whole thing will fail at that point; designed to carry out transferor‟s presumed intent

EXAMPLE 14 (AGAIN). If court determines restriction property not be used as a law school is so important to O that O would‟ve wanted the whole thing to fail if it couldn‟t have restriction, Nova would get nothing and the whole thing would fail; O would have a fee simple absolute PERPETUITIES REFORMS (* not responsible for these)  Abolition of RAP o New Jersey  Wait and See Approach o Improbable possibilities are ignored; some length of time, maybe 40 years, you wait an see if any imporblba possibilities happen then fine  But how long do you wait??  Cy Pres o Conform document to make it valid ANALYZING RAP PROBLEMS Remote possibilities test—if anything can go wrong, it will

STEP 1: Determine what interest is created and whether it is subject to RAP. STEP 2; Determine what it will take for that interest to vest (or fail). Figure out what is the condition; what happens or has to happen in order for interest to vest (someone goes to law school? Someone has to be a certain age?) STEP 3: Determine whether there is someone or some group (the measuring or validating life or lives) who is (are) alive at the beginning of the perpetuities period and who you can say, “within your lifetime(s) of 21 years thereafter, this interest will vest or fail.” Start w/beneficiaries, then to people who can affect beneficiaries, then to Must be alive at beginning of perpetuities period… Then can we be sure we can resolve problem we‟ve identified in step 2 w/in your lifetime of 21 years thereafter, if so, then the gift is good, if not, find someone else, after the third one, if no one fits measuring life, the it violates RAP

10/28/04
PRESENT ESTATES, FUTURE INTEREST, AND THE RULE AGAINST PERPETUITIES I. II. PRESENT AND FUTURE ESTATES—understanding chart is key PRESENT ESTATES—looking for language, who holds property now 34

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   III. 

Determinable could potentially go on forever, but could come to an end on the happening of a certain event o EXAMPLE 2. O to Nova so long as (fee simple determinable) it is used for school purposes, and when the land shall not be used for school purposes to Church A Condition Subsequent can come to an end upon the happening of a certain event o Difference is there is a right determining; future interest holder right of entry/power of termination and they have to exercise that right for it to end Don‟t worry about Fee Tail Life Estate says life FUTURE INTERESTS RETAINED BY GRANTOR o Possibility of reverter o Right of entry/power of termination o Reversions—almost catch all, anything left in grantor in terms of future interest is here CREATED IN THIRD PERSONS o Executory Interests  Shifting—divests the transferee  EXAMPLE 2.  Springing—follows a gap in possession or divest the transferee  EXAMPLE 3. O to A when A attains the age of 25. o O has a fee simple subject to limitation o A has a springing executory interest o Remainder—looking for a life estate to run out  Contingent Remainder  Created in unborn/unascertained persons or subject to a condition precedent; you never get it if condition is not satisfied  Vested Remainder—not subject to a condition precedent  Indefeasibly/Absolutely vested remainder—cannot lose it  Vested remainder subject to open—certain to become possessory, but can be lost as members enter the class o EXAMPLE 4. O to A for life, then to children of B.  If no kids, future interest holders have contingent remainder if A is still alive  Vested remainder subject to complete defeasance—certain to take possession, but no certainty of permanent retention; you are certain to get it if life estate holder dies, but you are not certain to keep it if there is a condition on the back end

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Two Rules of Construction: 1. If… following future interests in 3rd party, executory interest 2. If 1st is contingent remainder, following future interest will also be a contingent remainder EXAMPLE 5. O to A for life, then to B and her heirs, but if B doesn‟t graduate for Nova Law, then to C and her heirs. B has a vested remainder subject to defeasance b/c B can lose it to C EXAMPLE 6. O to A for life, then to B if has graduated from Nova Law at A‟s death, otherwise to C and her heirs. B has a future interest and it‟s a contingent remainder 35

C has a contingent remainder IV. RAP  No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest  Analyzing involves three question: o What interest is created and if it‟s subject to RAP  Contingent remainders, executory interest, vested remainder subject to open, options/rights of first refusal o What it will take for that interest to vest/fail  What is the condition? Live to 21? Child of B? o Whether there is someone who is alive at beginning of perpetuities period and who you can say “w/in ur lifetime or 21 years thereafter, this interest will vest or fail.”  Beneficiaries themselves, unless it‟s named in grant itself  People who can affect identity of beneficiaries  People who can affect any condition precedent  If one of these works, stop, b/c it‟s good  If not, it violates RAP EXAMPLE 7. O to A and her heirs, but if the property is not used as a farm, then to B and his heirs. B has executory interest and is subject to RAP Condition is property not being used as a farm We‟ve run out of people who could measure lives VOID—executory interest is bad EXAMPLE 8. O to A and her heirs, but if A herself doesn‟t use property as farm, then to B and his heirds. B has executory interest A not using property as a farm We know it will happen/not happen in A‟s lifetime, and b/c we can say for sure that property either will/won‟t be used as a farm by A during A‟s lifetime, it‟s GOOD under RAP EXAMPLE 9. O to A for life, then to A‟s children that attain age of 21. Assume A has one child, B, who is 18. A has life estate A‟s children who attain 21 have contingent remainder—two conditions, have to be a child of A and have to get to 21; b/c B is 18, hasn‟t met the other condition You have to be a child of A, have to get to 21 for it to vest/fail Can‟t use B as measuring life b/c he could die right now and A could have another child A affects identity of beneficiaries; we could say at A‟s death, we will know who all of A‟s children are; b/c we know at A‟s death who all of A‟s children are, we can see all children will be 21 or turn 21 w/in 21 years of A‟s death, so gift is VALID under RAP ***15-25 multiple choice questions on RAP/Future interests, which is 1/3 of final exam***

11/02/04 LIFE ESTATES AND THE DOCTRINE OF WASTE

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Waste—any act or omission of duty by a tenant of land which does lasting injury to the freehold, tends to the permanent loss of the owner of the fee, or to destroy or lessen the value of the inerhitance or to destroy the identity of the property or impair the vidnece of title Title of land is the present interest holder and future Present interest is prohibited from using land as to cause harm to land for the future interest holder; you are liable for that Permissive waste—occur when the life tenant fails to preserve and protect the property by exercising ordinary care of a prudent person Allowing property to detriorate Conmissive waste—occurs when the life tenant dmaamges the property iin such a way that the property‟s fvlaue is permanently or substantially reduced Harm done to property as a result of acts done by; affirmative/voluntary Four activities treated traditionally as being waste - cutting mature trees - putting land to different agricultural use - removing minerals except from already opened mines - demolishing or significantly altering existing structures Doctrine of Meliorating Waste  Permits life tenant to engage in acts that improves the inheritance rather than injures it o acts that improve estate o has a number of caveats, certain conditions attach  Three cases o Melms v. Pabst Brewing co. o Zauner v. Brewer o McIntyre v. Scarbrough MELMS V. PABST BREWING CO. Facts: Pabst brewing company took house off the land and graded it down to the level of the street to use it for commercial purposes; they didn‟t know they didn‟t have a life estate, they thought they were owner in fee; reversioner, Melms, sues alleging this constitutes waste Analysis: Court notes purpose of Doctrine is to prevent permanent injury to the future estate Why does court say this does not constitute waste? Land around it went all commercial, so residential property became undesirable Land had no use as it was, so for them to preserve something of little or no value Factors court looks at: - Surrounding circumstances had changed permanently (* important *); not due to any act by tenant; tenant was not the cause - Absence of a contract—they were a life tenanat, so they never made a contract w/the original owner; so no contract about maintaining the house o Would‟ve been different if terms of grant said maintain the house and never alter the premises and when life estate comes to an end that the house will be same condition  No sort of agreement here - Destruction increased the value of the property 37

Court finds even though life tenant destroyed house, it doesn‟t constitute waste b/c it increases the value Court is saying for public policy reasons we want land to be productive we won‟t have doctrine apply if we can make productive use of land Purpose of Doctrine is to protect future person‟s interest If grantor cared that much about the house, she would‟ve put in a provision about making it stay a house ZAUNER V. BREWER Court rules there is… w/respect to (1) until she surrenders premises, if she moves, is that surrender, and (2) whether or not she can state a claim for damages w/respect to waste Life tenant argued couldn‟t be liable for waste b/c she could still remedy it Court says it doesn‟t have to be permanent, it can be substantial; doesn‟t have to wait until life estate comes to an end MCINTYRE V. SCARBROUGH First issue—occupier issue Court said occupancy didn‟t just mean dwelling, she kept her possessions there and she planned to return Second issuethere is waste here Court said she didn‟t pay taxes, so there was waste; it was both taxes and that the place had fallen into a state of disrepair She forfeited property in the end b/c of doctrine of waste (minority view) About 20 states have statutes that say if tenant commits waste that relief in terms of damages or injunctive relief, but also forfeiture One could make 90 year old woman argument Other argument is that she agreed to pay the taxes and to keep up property One could say it did constitutae a serious enough breach and waste to constitute forfeiture PRINCIPAL PROBLEM p. 222 No question is that waste has occurred What should be remedies? There might be a forfeiture or SUMMARY  Does the life teanant‟s action/inaction result in injury to hinheritance or future estate o Commissive waste or permissive waste (LT must exercise ordinary care of a prudent person w/respect to the preservation and protection of the property and must not commit any acts which would permanently ionjure ( or in some jurisdictions substantially injure) the remaining interest o If yes… If there exsists injury, is it justified under the rules set forth in Melms? o Has the change increased the value of the estate? 38

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o Does there exists an agreement to use the property for a specified purpose, or to return it in the same condition in which It was received?  If yes, Doctrine of Meliorating Waste Has there occurred a competed and permanent change or surrounding conditions which has deprived the property of its value and usefulness as previously used (and such change was not produced by the life tenant)? o If yes, Doctrine of Meliorating Waste and doesn‟t constitute waste If the court finds that waste has occurred, what is the appropriate remedy? o Monetary damages o Injunctive relief—requiring them to restore property to before damage o Etc., maybe forfeiture

11/04/04 CONCURRENT ESTATES
CREATION FORMS OF CONCURRENT ESTATES  Joint Tenancy o Each joint tenant has an equal undivided interest in the property and a right of survivorship  Right of Survivorship—if one joint tenant passes away, the surviving tenant can have all the land  When you terminate it uni-laterally w/out other person even knowing o Created with clear intent to create  “To A and B as joint tenants w/the right of survivorship” o Can be terminated by tenant, suit for partition (voluntary or involuntary) brought by any one of the tenant, death of a tenant terminates it for that tenant o Common law traditionally required 4 unities:  Time (all tenants must take the interest at the same time)  Title (all tenants must take interest from the source, like same deed or same will)  Separate deeds will not achieve joint tenancy  Interest (all tenants must have equal and identical interests in property)  Possession (all tenants must have possessory interest in the whole) o Many jurisdictions no longer require unity of time and title Tenancy by the Entirety o Can only exist between husband and wife, each having an equal interest in property and a right of survivorship o Differences from Joint Tenancy  These cannot be terminated by involuntary partition  Can only be terminated by death of either spouse, divorce, or by mutual agreement  In many states, an individual spouse cannot convey tenancy by the entirety o Created w/clear language 39

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“To husband and wife as tenants by the entirety”  Ewald  conveyance to h/w, presumed to be tenancy by entirety Tenancy in Common o Each tenant in common has a distinct, proportionate undivided interest in the property w/no right of survivorship o Created “from Andy to Andy and Betty” or “to Andy and Betty as tenants in common” o Most jurisdictions favor tenants in common as opposed to joint tenants

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EXAMPLE: Andy and Betty want to buy an apt and want to know how they should hold title together If they aren‟t married, would they want property to go to other person? What‟s problem w/right of survivorship? Automatically goes to the other party Joint Tenancy—Andy could terminate it w/out Betty knowing; b/c of the fact it‟s possible to terminate it uni-laterally and defeats a person being able to convey interest by will to the person he/she may want, joint tenancies are unfavored Margaret ADAMSON V. Inez ADAMSON, HUNT, Joel ADAMSON - “Brian J. Adamson and Margaret Adamson (h/w) and Inez T. Adamson” - Court said it specifically said h/w and treated them as tenants by entirety; sufficient language to take them as a single unit - Margaret ends up w/a half, and Joel gets a hal EWALD - “John Ewald and Mary B. Ewald his wife and Joseph Ewald… as tenants in common w/right of survivorship.” - Court said it is tenancy by entirety b/c of language in deed (“his wife”); in addition, the use of “and,” so intent is to create two units and not just one - Court says about George and Joseph, language is ambiguous, so they go to default rule of tenants in common - Court points out that it is possible to have conflicting language but still find a joint tenancy o Previous case where it said “as joint tenants and tenants in common w/right of survivorship”—there was specific clarity to find a joint tenancy - To create a tenancy by entirety, you don‟t need to use those exact words o Need words to create the survivorship Joseph KURPIEL V. Jenny & Edward KURPIEL “Joseph Kurpiel, Jenny Kurpiel and Edward Kurpiel… jointly and not as tenants in common” Weren‟t divorced yet, so Jenny says you can‟t bring the action Court said b/c it said “jointly and not as tenants in common” written by an attorney Court said it was a joint tenancy fasdf

S.S. WEEMS V. FROST NATIONAL BANK OF SAN ANTONIO - “unto my cousins… to be held by them jointly” - The word “jointly” in and of itself does not create a tenancy o It could‟ve been used in a broad non-legal sense PRINCIPAL PROBLEM p. 283 40

Jack dies leaving his farm, Pollenacre, “to Bart and Rose Lee, and their son, Ron Lee, jointly.” Are they joint tenants? Or tenants in common? Weems would say “jointly” wasn‟t enough to create joint tenants Kurpiel might say it is b/c of family structure But it said “not as tenants in common” 1st issue is whether ron is a joint tenant w/bart and rose, so if he dies, his interest automatically goes to bart and rose 2nd issue is if tenants in common, then how do bart and rose, are thye treated as one unit or two separate units? Tenants in common? Or tenants by the entirety one could aruge they hold as one unit b/c bart and rose lee are designted w/one last name; also, the double “and” again; thirdly, indicated Ron is their son another could say designation of son is more descriptiitve than bart and rose; also, knew they were h/w and didn‟t say it so should be treated as tenants and common it treated entirety ½ tenants in common bart and rose both have 1/3

11/09/04 CONCURRENT ESTATES
CREATION I. Three forms of concurrent estates -tenancy in common (no right of survivorship) - joint tenancy (right of survivorship) can bring involuntary petition action - tenancy by the entirety (between a husband and wife, right of survivorship) can‟t bring involuntary petition action II. Presumption in most jurisdiction conveyance to two or more persons, no h/w, carries no right of survivorship presumption in favor a tenancy in common intent to create a right of surviviroship must be expressed w/sufficient clarity some states, like pa, presume any conveyance to h/w alone (a convenyance to only two persons) creates a tenancy by the entirely, even w/out mention of h/w If a grant is made to 3 co tenants, two of whom are h/w, the h/w will be tenants by the entirety if there is clear language to indicate that the grantor intended to treat the h/w as a unit; w/out this language, they are tenants in common

III.

ADMINISTRATION
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PRINCIPAL PROBLEM p. 297 Issue: If Reid had objected at the beginning, could they have stopped CCNV from taking the sculpture on tour? What is rule about tenant being allowed to use property? Tenants in common, both have an equal undivided interest in property, which means CCNV should be allowed to do what they want, but so should he One tenant in common can use and possess the entire problem, but can‟t exclude the other tenant, or they can‟t use it in a way to diminish the value of the property Issue: Has Reid been ousted? Yes—He doesn‟t have access to property; he told them not to take it on tour, one could say his communication to assert ownership, they ignored him and denied his request for share of revenues, CCNV seems to be exercising total control, so there is an ousting; not necessarily a clear ouster This property can only be possessed by one party at a time, which makes it different from Gillmor situation It is important that it is an ouster, you can only get ½ the profits if there‟s been an ouster What if there‟s no ouster? Are you out entirely? One could make argument revenues received from 3rd parties were more like rents from 3rd parties, under statute of Ann, have to be accounted to cotenants, even if no ousting occurred So he might be able to get ½ the money for tour Does he have to pay money for repair costs? Like Gillmor case, defendant there was entitled to recover for necessary repairs and maintenance, court notes ordinarily would not be able to do that but they could b/c of action for accounting being filed One could say here, for repairs, CCNV should be credited for repairs Bronzing doesn‟t just repair it, it improves it What is distinction between repair and improvement? CCNV would argue it is an improvement, but not to extent we wouldn‟t be able to complete tour and get revenues; but Reid will argue it is an improvement b/c it is pre-condition, it wasn‟t cast in bronze, so casting in bronze is not putting it in it‟s original position, it‟s making it better; only in partition action is credit given to the improvement; Improvements add long term value and it‟s capable of being recaptured by the improver only in partition action BRIGHT line rule is you get nothing for improvement until partition action Florence GILLMOR V. Edward GILLMOR Florence claims she has been ousted and brings action for partition and accounting Genearl rule: Owner can sue for profits if he/she has been ousted from property What establishes an ouster according to this case? Court says it requires some kind of act of exclusion that prevents other co-tenant from exercising rights of property; mere use of total property is not enough to establish an ouster

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Court deems these factors to be important for an ouster: Ignored request to use land and grazed it in a way that she couldn‟t use it anyway if she wanted to, b/c he refused to accommodate plaintiff‟s request, he was an ouster Issue: Accounting action—whether repairs could be deducted from amount defendant owed Florence YES, general rule is NO—cotenant in possession who makes repairs bears the costs of those; exception is when cotenant out of possession brings accounting action, the amount spent can be deducted from amount owed

Affirmative recovery for taxes/maintenance/other repairs: - If there‟s no ouster, tenant in possession in accounting action probably can receive the excess (Barrow) - If tenant has ousted cotenant, law bars recovery for affirmative claim, but you can use claim to offset any amounts owed—very few cases (Gillmor) James BARROW V. Donna BARROW If divorce action occurs, you can bring petition action She brings it; he says ok, you owe me half the taxes I spent on insurance; she says, you owe me half rental value Issue: Ouster? Court found no ouster b/c she never communicated he wanted to live there ** Court says there needs some kind of express communication of exclusive by ousting cotenant B/c there‟s no ouster, it‟s offset by claim to property; she can‟t get rent amount, but his claim for taxes/insurance/maintenance, anything she might have been able to collect from him is set off by amount he seeks SUMMARY RULES OF ADMINISTRATION I. LIABILITY FOR OUSTER a. Ouster occurs when a co-tenant is excluded by the other co-tenant from all or part of the premise i. Requires some express assertion of right to possession that has been denied, or physical barring from possession, some act of exclusion b. Remedies: action for ejectment and/or accounting; also, partition action i. Accounting here would be equal to plaintiff‟s pro rata share of reasonable value of defendant‟s use and occupation of land II. LIABILITY FOR RENT a. Absent ouster, cotenant typically is not required to account for the rental value of his/her own occupancy i. He has right to reasonable use/enjoyment of property and as long as cotenant does not prevent other from occupying property, cotenant in possession of property is not responsible for rent b. Rents from 3rd parties i. Statute of Anne (majority) requires a cotenant who receives rent from a third party to account for it to the other cotenants 1. If you rent out party to 3rd and they are paying rent, you have to give portion to other cotenants, even in the absence of ouster III. LIALTIY O FPROFITS a. Cotenant in possession is not required to account for any benefits accruing from his personal use of the land, as long as such use does not reduce the value of the land IV. LIABILITY OF WASTE 43

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VI.

VII.

a. Cotenant who removes minerals from property is required to account to other cotenants for their proportionate share of any monies derived from such operations LIABILITY FOR TAXES, INTEREST AND CARRYING CHARGES a. Co-tenant NOT in possession i. IS entitled to contribution for payment of taxes interest and carrying charges b. Co-tenant in sole possession i. Claim may be offset by the value of hi/her use of the property which has exceeded his proportionate share of ownership (Barrow) c. Ousting co-tenant i. May not seek contribution for these expenses but my offset amount of rent owed to his co-tenants by the amount of their share of the expenses (Gillmor) LIABILITY FOR REPAIRS a. Cotenant in possession who makes repairs typically may not seek contribution from his cotenants b. Cost of repairs will be credited in favor of the repair in a partition or accounting action LIABILTY FOR IMPROVEMENTS a. Cotenant can neither compel contribution nor receive credit for such expenses in an action for rents and profits; however, credit is given to the improver in a partition action

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