Documente Academic
Documente Profesional
Documente Cultură
Possessory Interests
A. Freehold Estates
1. The Fee Simple Absolute 2. The Defeasible Fees (a) The Fee Simple Determinable (b) The Fee Simple Subject to a Condition Subsequent
B. Non-Freehold Estates
1. The Estate for Years
2.
3. 4.
Non-Possessory Interests
1. Easement
2. Profit 3. License
Donald J. Weidner
NON-FREEHOLD ESTATES
Historically, leasehold estates have involved
aspects of real property and aspects of personal property.
Leases are traditionally treated as conveyances of estates in land While, on the other hand, being considered personal property chattels real.
On the death of a tenant, the leasehold interest would pass as personal property rather than as real property
2 Donald J. Weidner
When any of the leasehold estates is created, a future interest necessarily arises, either in the landlord or in a third party.
If the landlord retains the right to possession at the end of the lease term, the future interest is a reversion. If a third party takes possession at the end of the lease term, the future interest is generally a remainder.
3 Donald J. Weidner
Hypo: A leases to B from November 18, 2004 until January 30, 2005.
Fixed beginning and fixed ending. An estate for years (term for years) is created.
So long as a gross period is stated, an estate for years is created even though it is subject to earlier termination.
Garner v. Gerrish states: Leases providing for termination upon the occurrence of a specified event prior to the completion of an otherwise fixed term, are routinely enforced even when the event is within the control of the lessee.
4 Donald J. Weidner
Statute of frauds: (typically) provides that a lease for a term in excess of one year must be in writing to be enforceable. Unlike the typical conveyance of a fee, a term for years is a conveyance that involves a continuing relationship between the grantor (lessor) and the grantee (lessee).
Consider, at the extreme, a shopping center lease.
Donald J. Weidner
TENANCY AT WILL
The basic concept is that a tenancy at will is neither for a fixed period nor for a series of periods; in its purest form, it continues only so long as both lessor and lessee want it to. If a lease provides that one party can terminate it at will, there is significant authority that says that, as a matter of law, it can also be terminated at the will of the other party (if a tenancy at will has been created).
For more, see Garner v. Gerrish
However, a unilateral power to terminate a lease can be grafted on to a term of years or a periodic tenancy without making it a tenancy at will.
Ex. L leases to T for 10 years or until L sooner terminates
creates a term of years determinable.
Donald J. Weidner
Modern statutes typically require a period of notice say 30 days or a time period equal to the interval between rent paymentsin order for one party or the other to terminate a tenancy at will.
The effect of such statutes is to turn the estate at will into something very like the estate from period to period.
It also ends at the death of one of the parties. If, under a tenancy for no fixed period, rent is reserved or paid periodically, a periodic tenancy, rather than a tenancy at willarises by implication in most jurisdictions .
7 Donald J. Weidner
PERIODIC TENANCY
A periodic tenancy is a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or the tenant gives the requisite notice of termination.
Periodic tenancies can arise expressly or by implication. Ex. LL to T from month to month.
If the proper notice to terminate is not given, the period is automatically extended for another period. At common law, a tenancy from year to year required six months notice to terminate
Ex. If T is a year-to-year tenant beginning January 1, 2004, L must receive notice of termination before July 1, 2004 or be held over to another termthrough December 31, 2005. A tenancy for a lesser period required a notice equal to the length of the period, but not greater than six months.
Donald J. Weidner
TENANT AT SUFFERANCE
The tenant at sufferance does not have any estate in land, but because some writers have listed an estate at sufferance as one of the non-freeholds we should mention it here to complete the pattern. This wispy interest arises only in the case of a holdover tenant.
More later.
11
Donald J. Weidner
PROBLEMS at 446
On October 1, L leases Whiteacre to T for one year beginning October 1.
The following September 30, T moves out without giving L any notice. What are Ls rights?
12
Donald J. Weidner
PROBLEMS at 447
On October 1, L leases Whiteacre to T at an annual rental of $2,400, payable $200 per month on the first of each month.
No fixed term is mentioned, so not a term for years. Periodic tenancy and for what period? Some rent reserved vs. others rent paid If year-to-year
6 months notice required to terminate at common law Many states have statutes that shorten the length of time to terminate a periodic tenancy
If month-to-month
1 month notice is required to end the tenancy at the final day of a period Some statutes permit a month-to-month tenancy to be ended at any time after 30 days notice (even in the middle of a period)
13 Donald J. Weidner
14
Donald J. Weidner
15
Donald J. Weidner
Garner v. Gerrish
In 1977, Fee Owner (a natural person) owned a house. Fee Owner executed a Lease on a printed form.
Fee Owner filled in the blanks on the form. Specifying $100 per month rent. The term was stated to begin on May 1, 1977 and
[W]hich term will end Lou Gerrish [T] has the privilege of termination [sic.] this agreement at a date of his own choice. To the standard reference to the LLs right of reentry if the rent is not timely paid was added: Lou has thirty days grace for payment.
Fee Owner died in November, 1981. Executor of Fee Owners estate (Garner) gave T (Gerrish) notice to quit
Which T ignored
New York Court of Appeals states: [T]he parties concede that the agreement creates a lease.
17
Donald J. Weidner
18
Donald J. Weidner
Garner saves the day, at least insofar as it enforces an objective manifestation of intent,
Does it say that this is an enforceable leasehold? Does it say this is an enforceable life estate?
20 Donald J. Weidner
1. L leases Orangeacre to T for as many years as L desires. What estate does T have?
Term for years? Tenancy at will?
Some: could have a tenancy at the will of a T only [thus making it similar to a determinable life estate] But virtually all said: A tenancy, stated to be at the will of the LL only, was necessarily also at the will of the T.
Would you abandon that rule? Could it be unconscionable?
Problems
Does T have a life estate pur autre vie (LLs)? Does T have a determinable fee?
For rent payments of $500 a month, LL leases Greenacre to T for the duration of the War. 1. First Approach. Ask the following questions in order:
Is it a term for years? (if no, then) Is it a periodic tenancy? (if no, then) Is it a tenancy at will?
Kalis asked the questions in this order and concluded a tenancy at will had been created and allowed LL to evict T.
Problems at 450
As term for years is generally understood, the ending date can be determined ex ante It proves too much to say that a definite end date can be determined ex post
For example, that would convert life estates into terms for years. If A conveys to be until B dies, B will always eventually die.
Involved a lease to T for a term of 20 years and so long thereafter as T used the premises for particular purposes. When intent is clear, enforce the agreement as written.
23 Donald J. Weidner
2/6/69
LL
Ts new bldg. is not ready. Dispute about who said what in negotiations between LL&T. LL writes to T: You have no oral extension:
1. 2.
quit and vacate at midnight, per lease. You are subject to payment of double rent for any holdover.
Held: this letter was an effective election to terminate the lease and to treat the Ts as trespassers.
3/3/69 4/6/69
LL LL
Pays rent for 1 month by check, which LL deposits. Pays rent for next month by check, stating final payment, but LL refuses to cash this check.
T T
*GENERAL RULE: a TY from year to year is created by the Ts holding over after the expiration of a term for years and the continued payment of the rent reservedBy remaininga T gives the LL the option of treating him as a trespasser or as a tenant for another year. (Some say rent payment period: month-to-month).
MISS. STATUTE: Authorized double rent for the 25 period of the holdover.
Donald J. Weidner
4/7/69
LL
Tendered the premises for purposes of LLs inventory T [presumably after vacating] LLs lawyer writes, electing to renew for a new 5-year T term [2 months after the expiration of the lease]
Crechale
(Contd)
4/19/69 LL
[A Year Passes]
5/15/70 LL
5/27/70 LL
The LL in Crechale had an additional option, a statutory option, that the court did not mention but that was reflected in his letter: Mississippi statute gave the LL the option to sue the HO for double rent for the period of the holding over. Indeed, 10 years later the Mississippi Supreme Court held that the statutory remedy was intended to pre-empt the CL remedy. Note: there was no legal basis for the claim of a new 5-year term. Note: the CL MD is FRV of the leased premises, with the rent reserved in the original lease as good evidence of FRV.
26 Donald J. Weidner
27
Donald J. Weidner
30
Donald J. Weidner
31
Donald J. Weidner
32
Donald J. Weidner
The tenant also argued that he had been constructively evicted by the LL
Such that his obligation to pay rent ended as a matter of law
33
Donald J. Weidner
The next question became, was this obligation to pay reasonable rental value suspended by constructive eviction?
The Court held that there was no constructive eviction because the tenant did not abandon the property within a reasonable time.
May the tenant recover damages caused to the property stored in the barn because of the leaky roof?
Held, there was no covenant by the landlord to keep the shed in repair. The Court also noted that, even if the blockage was wrongful, there was no cause or connection between that blockage and the damage to the goods.
34 Donald J. Weidner
- T contracts with B to install and operate a cosmetics concession in Bs department store; - T is allowed to farm Bs land, the consideration being that A will share the crops with B; - T rents a room for 2 months in Bs rustic country inn; - T works for B and is given a room in Bs house as partial compensation.
35
Donald J. Weidner
36
Donald J. Weidner
For period of 10 years commencing on the first day of the calendar month following the date of completion of [the renovations] Lease was silent regarding completion date). Rent: 10% of gross, with $22,000 minimum.
37
Donald J. Weidner
Student Residence Hall Contract Agreement was held to be not a lease. Three basic possibilities: 1. License
A privilege to go upon land belonging to the licensor Permission to do acts upon anothers land that otherwise would constitute trespass With exceptions, license is revocable at the will of the licensor
2. Easement
A nonpossessory interest in the land of another Entitles the holder of the easement to a limited use or enjoyment of land in the possession of another Not terminable at the will of the possessor
3. Lease
A possessory interest in the land of another Leasehold requires that the lessees possession be more than merely coextensive with the lessor. However, there may be a reservation of a right to possession by the landlord for purposes not inconsistent with the privileges granted to the tenant.
39 Donald J. Weidner
41
Donald J. Weidner
42
Donald J. Weidner
F. Tannenbaum, Slave and Citizen (1946), was based on a seminar on the History of Slavery in the Western World given at Columbia University in 1938-39. Perhaps the most basic point of the book is that the term "slavery" embraces a range of institutions that vary in severity. See Id. at 65, no. 153:
43 Donald J. Weidner
Tannanbaum (contd)
There were, briefly speaking, three slave systems in the Western Hemisphere. The British, American, Dutch and Danish were at one extreme, and the Spanish and Portuguese at the other. In between these two fell the French. The first of these groups is characterized by the fact that they had no effective slave tradition, no slave law, and that their religious institutions were little concerned about the Negro. At the other extreme there were both a slave law and a belief that the spiritual personality of the slave transcended his slave status. In between them the French suffered from the lack of a slave tradition and slave law, but did have the same religious principles as the Spaniards and Portuguese. If one were forced to arrange these systems of slavery in order of severity, the Dutch would seem to stand as the hardest, the Portuguese as the mildest, and the French, in between, as having elements of both. 44 Donald J. Weidner
1791
The Fifth Amendment to the United States Constitution provides, in part:
No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
45
Donald J. Weidner
1850
Roberts v. City of Boston, 59 Mass. 198 (1850); suit to end mandatory segregation in the Boston public schools on the basis of Massachusetts Constitution that provides, in part, that "all men, without distinction of color or race, are equal before the law...." Unsuccessful. Mr. Chief Justice Shaw explained, in part, as follows:
46
Donald J. Weidner
1857
Dred Scott v. Sanford, 60 U.S. 393 (1857): intent of constitution is that African Americans may not be citizens of the United States
even if they become citizens of a particular state.
48
Donald J. Weidner
1863
Emancipation proclamation.
1865
The Thirteenth Amendment to the United States Constitution provides:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
54
Donald J. Weidner
Note that Jones v. Alfred Mayer said that Section 2 of the 13th Amendment empowered Congress to enact section1982.
Similarly, Starrett City stated that the Fair Housing Act, originally enacted as part of the Civil Rights Act of 1968, was enacted pursuant to the Congressional authority under section 2 of the 13th Amendment.
55
Donald J. Weidner
H. Horowitz and K. Karst, Law, Lawyers and Social Change 123-5 (1969)
In the south, emancipation was soon followed by the enactment of the "Black Codes", which wrote into law a systematic and thorough set of disabilities designed to maintain black men in a status that approached slavery almost as closely as the Thirteenth Amendment would allow. The Black Codes imposed disabilities to own or convey property, to inherit or purchase, or to have access to the courts. Other rules governing the employment relation gave an employer rights similar to those previously enjoyed by a slave owner. Perhaps the worst abuse of the legal system was the convict-lease (chain gang) system, which resulted in something that might be called de facto slavery for many thousands of black men....
56 Donald J. Weidner
The Black Codes and the Civil Rights Act of 1866 (contd)
In some states, the convict-lease system persisted well into the twentieth century. Some of the Black Codes were repealed or considerably softened by Reconstruction legislatures that sat while federal troops occupied the southern states. But enough of this legislation remained for the Reconstruction Congress to take a hand. The Civil Rights Act of 1866 was designed in major part to abolish the disabilities imposed by the Black Codes. It provided: 57 Donald J. Weidner
The Black Codes and the Civil Rights Act of 1866 (contd)
"That all persons born in the United States and not subject to any foreign power, ...are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous conditions of slavery or involuntary servitude...shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." 14 STAT. 27.
58 Donald J. Weidner
The Black Codes and the Civil Rights Act of 1866 Contd
This bill was passed by Congress on March 13, 1866, but was returned to Congress by President Andrew Johnson. He was of the view that Congress did not have power delegated by the Constitution to enact the statute.
Recall Dred Scott
The only possible basis of such power was section 2 of the Thirteenth Amendment,
which empowered Congress to "enforce" by appropriate legislation the abolition of slavery within the United States.
The rights declared in the statute were not, in President Johnsons view, sufficiently related to abolition to fall within the power of Congress under section 2.
59
Donald J. Weidner
The Black Codes and the Civil Rights Act of 1866 (contd)
Congress enacted the Civil Rights Act over the President's veto on April 9, 1866.
During the debate on the bill, however, even some ardent radical reconstructionists expressed constitutional concerns like those expressed by President Johnson.
Because many members of Congress doubted that the Thirteenth Amendment provided a sufficient constitutional basis for congressional power, it was proposed to offer to the states a new amendment that would, among other things, validate the 1866 Act.
60 Donald J. Weidner
The Black Codes and the Civil Rights Act of 1866 (contd)
The result was the Fourteenth Amendment, which occupied the attention of Congress from the time of adoption of the Civil Rights Act of 1866 until June 13, 1866, when the House of Representatives adopted the Senate version, and the amendment went to the state legislatures for ratification. The Fourteenth Amendment became law in 1868.
61 Donald J. Weidner
1868
The Fourteenth Amendment to the United States Constitution, which became law in 1868, provides, in part:
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
62
Donald J. Weidner
1868 Contd
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
As the text points out: The Fourteenth Amendment prohibits only state (not private) action, but the Supreme Courts [1948] decision in Shelley v. Kramer [see below] effectively eliminated at least some private discrimination as well.
63
Donald J. Weidner
1870
The Fifteenth Amendment provides that the right to vote is not to be denied on account of race;
Congress is given the power to enforce.
64
Donald J. Weidner
1883
Civil Rights Cases (1883): Test case that arose in N.Y.C. African American man went with a light-skinned African American woman to a theater. She was admitted, he was not.
He sued under the Civil Rights Act of 1875 (a public accommodations statute). Court said that Congress did not have the power to enact the Civil Rights Act of 1875.
66
Donald J. Weidner
1896
In Plessy v. Ferguson, (1896), the Supreme Court rejected a Fourteenth Amendment challenge to an 1890 statute that required "equal but separate accommodations" for African American railroad passengers. The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a co-mingling of the two races upon terms unsatisfactory to either.
68
Donald J. Weidner
1917
Buchanan v. Warley, (1917): an ordinance of the City of Louisville "prevents the occupancy of a lot in the city of Louisville by a person of color in a block where the greater number of residences are occupied by white persons." Invalid:
We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.
70
Donald J. Weidner
1926
In Village of Euclid v. Ambler Realty Co., (1926), the Supreme Court upheld the basic pattern of zoning set out in the Standard State Zoning Enabling Act. It did so even though the District Court had concluded the following about the ordinance:
In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true reason why some persons live in a mansion and others in a double-family dwelling, why some live in a two-family dwelling and others in an apartment, or why some live in a well-kept apartment and others in a tenement, is primarily economic. It is a matter of income and wealth, plus the labor and difficulty of procuring adequate domestic service.
71 Donald J. Weidner
1948
Shelley V. Kraemer, (1948): the Supreme Court of Missouri had ordered a lower court to grant the relief requested by a plaintiff asserting the benefit of a racially restrictive covenant
no "people of the Negro or Mongolian Race" to occupy as owners or tenants.
African American purchasers, Shelleys, purchased and moved upon a restricted parcel. The relief requested was that the Shelleys be restrained from taking possession and that title be taken from them and revested "in the immediate grantor or in such other person as the court should direct."
72
Donald J. Weidner
73
Donald J. Weidner
75
Donald J. Weidner
1968
The federal Fair Housing Act was originally adopted in 1968.
It has subsequently been amended several times.
78
Donald J. Weidner
1968 (contd)
Jones v. Alfred H. Mayer Co. involved a complaint that someone had refused to sell Mr. Jones a home for the sole reason that he was black. The case was decided on the basis of 42 U.S.C. 1982, which was originally contained in the Civil Rights Act of 1866:
1982. Property rights of citizens. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
79
Donald J. Weidner
Anyone injured by a discriminatory practice may commence a civil suit for injunctive relief and damages
including punitive damages
84 Donald J. Weidner
The 1866 Act is narrower than the Fair Housing Act in that it
only reaches racial discrimination does not deal with discrimination in the provision of services and facilities, and does not prohibit discriminatory advertising.
The 1866 Act is broader than the Fair Housing Act in that it
contains none of the exemptions found in the Fair Housing Act.
85
Donald J. Weidner
Question at 463
Ms. Murphy has an apartment to rent in her home. She puts the following advertisement in a local newspaper:
For rent: Furnished basement apartment in private white home. Call 376-7410. A Black couple applies and is rejected by Mrs. Murphy because of race.
86
Donald J. Weidner
87
Donald J. Weidner
88
Donald J. Weidner
In the action to recover possession from the HT, a NT would have to rely on facts concerning the right to possession that are known by the LL. Do both boil down to: put the duty on the person who can satisfy it at lowest cost? Is there any other argument in favor of the English rule?
90
Donald J. Weidner