Final, quiz, midterm 1 Property I Outline Cavalieri Fall 2013

POLICY CONCERNS IN PROPERTY LAW

LIBERTY EQUALITY AND REDISTRIBUTION
Freedom to do anything with the law with regarding to property and using it. How much are you allowed to accumulate? How much stuff can you have? What are you allowed to do and what cant you do? Example: I own a dog, but I am not free to kill my dog. If you have a lot, can we take some away (ie public purposes?) Under what circumstances could that happen (i.e. Constitution giving authority for gvt to take prop in some instances, imminent domain). What is the least costly, most efficient way to use the stuff?
Economics: -maximizing land values -maximizing return from natural resources -lowering transaction costs -we want land to be used fruitfully -promoting fair competition

EFFICIENCY

The law should seek the most economical way of operation.

FAIRNESS & RESPONSIBILITY

How one uses his land with respect to the effect on the surroundings.

Can I use my stuff in ways that causes harm to others? In what instance?
Fairness: -meeting expectations -balancing outcome for all parties -putting burden on lowest cost avoider (kind of ties in with economics in a way) -rewarding first in time (but not always, see: nuisance) -general fairness to those who act in good faith (ex: good faith improver of another's land)

ACCESS ADMINISTRABILITY

When a landowner allows access to outsiders and then terminates access. Law is easy to follow and clear with predictable outcomes.

JUDICIAL ECONOMY

Law makes it easier for judges to resolve, can deal with probs quickly through administrable laws that are clear-cut answers to issues. Establish rules that judges can interpret and not waste their time on.

I.e. law of easements, can state require me to grant access to someone else? What kind of access? Under what circumstances and why? Ability to predict how the rule will work in the future. Can we make laws that are easy to follow and help people align their behavior? Examples: Speed limit 35mph as opposed to not too fast. Or you must disclose mold in selling house vs. must disclose mold that is 7 part particles/mm continuous in air. Example: habitability requires that a house can be habited by a reasonable person vs. House must be heated to 65 degrees. A rule that everyone can predict that the crt will do, and an economical use of judicial resources.
-making judicial decisions more efficient and easier and establishing bright line rules while still allowing flexibility

PART II WAYS OF GETTING PROPERTY

Action to Quiet Title : lawsuit in order to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title.

Final, quiz, midterm 2 Property I Outline Cavalieri Fall 2013

FIRST POSSESSION
Discovery
Gives exclusive title to those who made it. Discovery is superior to the right of occupancy.

First in time, first in right; the person who gets there first has possession of the property. Types: Discovery, Capture, Creation. Discovery gives a person the best title to that property, and is the closest thing a person can have to absolute ownership. The theory is that the discoverer has the best title because she was the first in time. Is open to manipulation. Possession is a legal conclusion, as demonstrated when European settlers occupied the new world and considered tribes mere occupants because they didnt think they were using the land correctly. Mere pursuit of an animal does not give legal right to pursuer, must have control to possess. Movable like wild animals, oil and gas. Belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under anothers control, the title of the former owner is gone & resume as common property. Unowned, with no specific owner. And fugitivethey are mobile. Person must kill or mortally wound it to take control. 1. Mortally wounding the animal 2. Catching the animal in a cage/trap 3. Grabbing the animal & securing with hands Is not enough. The inclination to return suggests domestication. They have constructive possession of the future property interest. (Keebler case, shooting guns near duck decoy) Person who adds value to the property acquires interest in title. O and T are neighbors. T sees deer on Os property, goes over and shoots the deer, brings it home, illegal. O was not in actual possession but had constructive possession. If a wild animal escapes and resumes natural liberty, original owner loses his property right. Once again unowned and 1st to capture is new owner.

Whether a person is a discoverer

Title is relative, rights are interpreted in terms of competing claims.

Acquisition by Conquest/Capture Fugitive property

Applies to fugitive resources and wild animals.

Two characteristics of acq. by capture Ferae Naturae

A person becomes owner of a wild animal/fugitive resource

Wild animal By capturing the animal and reducing it to possession.

The prospect of capture

Domestic Animals Constructive possession Labor Theory Constructive possession & trespass

No matter how likely to succeed

When one is using land for profit

Deer example

Escape

Final, quiz, midterm 3 Property I Outline Cavalieri Fall 2013

Marked Animals Policy of marked animals

If an animal is marked, crt will allow owner to maintain title.

Custom and usage within an industry (whale) can be used to determine ownership of property. To foster industry for the public good. Otherwise no person would engage in the fruit of its labor.

ACQUISITION BY CREATION Intellectual Property

Copyright
Interests of public are weighed with private property rights Must be registered, takes 2 years.

Quasi Property

hot news INS vs. AP

Imitation
Generics & Imitation

Cheney vs Doris Silk Smith vs. Chanel

Property in Ones Persona

Right of Publicity includes RoP can include

A celebritys right of publicity is tangible personal property.

A person who creates property is a first possessor. Most common way to create property is through copyright or patent because it gives you protection as to the whole world. Example: life saving drugs are important, silk/perfume not important. Access to life saving drugs trumps private property rights. Gives exclusive right to sell, publish or reproduce. Icea must be original, concrete, useful. Does not protect against any person who independently creates identical or similar work product. No property right in news collected, but an interest in it. D did not take Ps property but took Ps interest. Policy: having the news industry benefits the public, informs them, worthy of protection. If you cant copyright, imitation is allowed. Policy: silk patterns not important public policy concern, Imitation is the lifeblood of competition. Generics can be taking a free ride but they are for the public good, ultimately copying benefits consumers. Policy: different strengths of property rights need to be considered. Also, generics didnt kill the industry (Chanel is still around). This protects people from losing benefit of their work in creating a recognizable persona or identify. Right of publicity can be assinable at life, capacitable at death. Name, likeness, signature voice. appropriation. But too much protection can cost the rest of us, hinders public creativity. Must strike a balance between publicity rights vs. public policy. When human tissue leaves the body no personal property rights to it. Even if the cells are used to create a cell line that is of great commercial value.

White v. Samsung

Property in ones person

Final, quiz, midterm 4 Property I Outline Cavalieri Fall 2013

PART II WAYS OF GETTING PROPERTY

SUBSEQUENT POSSESSION
Theory of sub possess.
Hierarchy of Property Interests Who has the best/worst title for: 1. Mislaid 2. Lost

Occurs when a person comes into possession of prop that is already owned by someone else. Includes prop that is lost & found. Title is relative. A persons rights as to property are understood in relation to anothers rights in the same piece of property. MISLAID: True owner > Locus Owner > Finder and LOST: True owner > Finder > whole world (includes subsequent finder) True owner unintentionally misplaces property. i.e. wallet left on counter at Target. True owner will go back to where the property was intentionally placed to retrieve it, so the Locus Owner has right of possession. Surface means mislaid but one could reason the property as lost/mislaid for the following reasons... The finder acquires no rights because we want property to end up in the hands of the true owner, which is more likely if finder has no rights. Owner doesnt know whereabouts. I.e. wallet on floor at Target. True owner wont go looking for it, finder now acquires possession rights. Owner intentionally relinquishes his rights to the property and has no present desire to retake it. Finder acquires best title and becomes the true owner. Where was the owner when she lost the property? What was she doing? How did the finder find it? What did the finder do after finding it? Trover: sue for $ of prop, Replevin: sue to compel return of prop. CL held that finder of treasure trove got to keep it regardless of where it was found. ML has abandoned because encourages trespassers, now belongs to landowner.

Mislaid Property
Theory of Mislaid Property left on surface? Policy for mislaid
Final exam tip given at lecture

Lost Property
Theory of Lost

Abandoned Property
Theory for Abandoned Determining Lost vs. Mislaid vs. Abandoned Trover vs. Replevin Treasure Trove

Final, quiz, midterm 5 Property I Outline Cavalieri Fall 2013

BAILMENTS
Created by

Defined as: 2 steps The bailee must:

The rightful possession of personal property by one who is not the true owner.
(1) Delivery of physical control of the chattel AND (2) Bailees intent to exercise that control. Physically possess the property; Knowingly possess the property; Know exactly what is possessed; and Consent to the possession.

Four elements of a bailment

i) ii) iii) iv)

Example: Car with valet. Laptop in back.

Valet responsible for bailment (car). Not for laptop, not responsible for loss because didnt know it was there at delivery.

Four questions to analyze if a bailment exists

3 Kinds of Bailments
Voluntary by K Voluntary Without an Express K Involuntary Bailment

Duties of Bailee

Sole benefit of bailor Mutual benefit of bailor & bailee Sole benefit of bailee Voluntary Bailments Duty of Care to return chattel Duty of Care to return chattel

Involuntary Bailments

Mistake of value Not Bailments

1. Are requirements satisfied? 2. If so, what is the scope? What items of personal prop are part? 3. What is the standard of care for protection? 4. What is the standard of care for redelivery? 1. Voluntary by K 2. Voluntary w/o K (measuring cup) 3. Involuntary bailment implied by law (finder of lost prop) When owner (bailor) gives to bailee his property. I.e. laundry mat, coat checking at restaurant. Lending a rake to a neighbor. When goods are found, the finder becomes the bailee with respect to the true owner. (1) To protect chattel with legally prescribed duty of care (DoC) (2) return chattel upon demand or when purpose completed. Bailee must exercise slight diligence and will not be liable unless s/he is grossly negligent. Bailee must exercise reasonable care and is liable if s/he is negligent. Bailee must exercise great diligence and is liable if s/he is only slightly negligent. Where the bailee either sells the chattel or returns it to the wrong personthe bailee is traditionally liable for conversion and will be held to a strict liability standard. Near strict liab for mis-delivery is less justifiable when involuntary bailment created by operation of law, where bailee may not know identify of the bailor. 1. Progressive crts have adopted a neg standard. 2. Less progressive juris maintain strict liab. Mistake of value is irrelevant. Took control = bailment. Sales- ownership passes. Leases- limited ownership and full possessory ownership. License/custody- limited right to use and control, bailment must include control.

Final, quiz, midterm 6 Property I Outline Cavalieri Fall 2013

ADVERSE POSSESSION
Theories
Earning Theory

Makes it possible for a wrongful possessors use of prop to blossom into rightful ownership. Earning, Sleeping, Reliance, Quiet Title, Judicial Economy Reward the adverse possessor for beneficial use of the property. Punish the true owner for sleeping on his rights & not making beneficial use. A.P. recognized in order to benefit third party reliance. People depend on use. We want people to do biz and interact with person in possession. Dispute resolution mechanism. Settles disputes when titles are contested. Evidence weaker with time so we dont have to rely on fuzzy evidence. Entry, Open & Notorious, Continuous, Adverse Must have actual entry giving exclusive possession to trigger SoL Constructive Adverse Possession- A.P under color of title (faulty writing) A.Possesor cannot hide/conceal the use. True owner must be able to reasonably discover the adverse use. For statutory period. Actual continuity not required, just consistent use with the property and for its purpose (summer home every summer, continuous req met) Under claim of right (without owners permission) and against true owners interest. Good Faith- Due to factual mistake, possessor thought she owned the land. Bad Faith- Knew she wasnt rightful owner, requires aggressive trespass. Objective- Majority. Adverse possessors SoM irrelevant. All that matters is claims are in conflict with owners interest. Possessor purchased land with faulty writing , method of clearing up title when ownership is in doubt via constructive possession. A. Possessors may tack a predecessors time in order to satisfy continuity. Must be in privity with prior adverse possessor (voluntary transfer). If true owner is disabled at the time CoA accrued the SoL is tolled (or paused). Common situations are imprisonment, mental incapacity, or minor. forms a new boundary. If true owner acts as tho a line is the boundary (mowing the lawn along a line) for an extended period (not yet period req. by ad. poss.) it becomes the new line (informal indifference).

Sleeping Theory Reliance Theory Quiet Title Judicial Economy

Elements of A.P. (4)

1. Entry
Exception to entry

2. Open & Notorious 3. Continuous

Exception to continuous

4. Adverse
States of mind for Adverse

Color of Title Tacking

Disability Oral agreement on a boundary Acquiescense

Final, quiz, midterm 7 Property I Outline Cavalieri Fall 2013 Estoppel Doctrine of Mistaken Improvers
Quasi-K. One party makes representations, other party has to have formal reliance on the other partys word. Trivial encroachments with accidental improvements. If improver makes innocent change, encroached upon party may be able to receive monetary incentives for the land. is typically regarded as on notice as to the official boundaries as defined by the counties.

A land purchaser

GIFTS
Gifts can be

Gratuitous, voluntary transfer of property without payment or consideration. Valid gifts are irrevocable. Inter vivos, testamentary, causa mortis Rooted in the idea that society favors the free alienability of personal property because we want it to end up in the hands of people who are going to use it most efficiently, & we dont want people to hoard goods. Donative intent, delivery, acceptance. Donor must have present intent to make irrevocable gift, & must manifest a clear intent. Can do this by express writing or oral declaration. The donor must deliver the prop to the done in order to make a valid gift. Donor to feel wrench of delivery and law requires manual (actual) delivery when practical Constructive, Symbolic, Delivery in Writing Donor provides something that will give done control over the item or will provide item, provide access. (i.e. key to car) Donor gives something symbolic of gift. (i.e. photo of the car) Donor delivers item in writing, writing gives sufficient identify & description of item being gifted. (i.e. I give you my red Jeep. Statement is enough for intent. But even if had present intent, didnt actually deliver but would be cumbersome to go get it and hand it back, unreasonable and unnecessary. Donee must accept gift. So long as it has value we presume acceptance, unless evidence that recipient rejected gift. Person makes gift on basis of some condition. I give you this watch provided the horologist can fix it Acceptable if no evid. of fraud. (If exam has engagement ring, argue the facts: parties expectations, value of ring, circumstances of falling out, who is to blame). Made in anticipation of donors death, will substitute. Must be made facing imminent death (abstract fear of dying not enough). Must actually die. Can be revoked before death. Causa mortis, couldnt get up so impossible to do anything else besides point. But should have been in writing. Did he deliver just furniture or what furniture contained? Who was beneficiary of insurance policy?

Theory of Gifts

Gift Inter vivos elements

Intent Delivery
Theory of Delivery
When actual delivery not possible, 3 types permitted

Constructive Delivery Symbolic Delivery Delivery in Writing

Example: Person leaves bracelet, says via phone I always wanted you to have it anyway.

Acceptance Conditional gift

Gift Causa Mortis

Causa Mortis Additional Requirements Example: I give my nurse everything in this room. Desk has life insurance policy.

Final, quiz, midterm 8 Property I Outline Cavalieri Fall 2013

PART III: CONCURRENT INTERESTS & MARITAL PROPERTY

CONCURRENT OWNERSHIP
Theory
Three types
Exists when 2 or more people own the same property at the same time. Built around legal fiction in which two people can occupy at the same time, & dispute resolution regime to resolve fighting between two parties. TIC, JT, TBE Two or more with no ROS. Each has separate but undivided interest in the prop, interests are not physically divided. Each has right to occupy the whole. Default conveyance by ML. Each share is alienable, descendible and devisable. Unequal shares are fine but must be in writing. Separate but undivided interests, key feature is right of survivorship. Time- Interests created at the same time. Title- Acquired by the same instrument or joint A.P. Interest Each must have equal undivided shares & identical interests, as measured by duration. Possession each has right to possess the whole. If any of the four unities are destroyed, JT severed. The severed unity becomes TIC. Methods include mutual agreement, conveyance to 3rd party, use of strawman (CL), sale, partition Lien Theory- Majority. Execution of mortgage doesnt sever JT. Title Theory-Minority. Severs JT because it is conveyance of title. CL held that a lease severed conveyance. Today most juris hold that it does not. If one dies other has ROS. If both die simultaneously, of each interest passes. If one JT murders another, severed by operation of law to avoid unjust enrichment. Can be created to make a present gift of undivided interest in the account, to use survivorship as will substitute (POD accounts), or as convenience. Crts will determine the intentions of the depositor. Same as JT, requires time, title interest and possession. But between married people Cannot unilaterally sever or convey interest- both must agree. Creditors- MC Hammer- cant touch this because neither can transfer interest w/o others approval. Death, divorce, conveyance by both. IRS can reach a TBE interest even though creditors cant.

TENANCY IN COMMON
TIC additional rules

JOINT TENANCY JT - 4 features

JT Severance

JT- Mortgage
JT- Lease JT- Death

Lien theory & title theory

JT- Bank Accounts

TENANTS BY THE ENTIRETY

TBE special rules Termination
Government Claims

Final, quiz, midterm 9 Property I Outline Cavalieri Fall 2013

RIGHTS & OBLIGATIONS

CONCURRENT OWNERS Partition Partition in Kind Partition by Sale
Equitable action whereby a crt will divide up a concurrent estate.Remedy for either TIC or JT. If co-tenant seeks, crt will divide the property according to the separate interests. Physical division of the property into separate tracts of land. Favored over sale because sale is an extreme exercise of power, ust first consider emotional attachments that exist in the property. Monetary division where crt sells prop and divides proceeds according to respective interests. Used when partition in kind is impracticable or inequitable because of physical attributes of land, or better remedy for owners because physical separation reduces value.

Oweltry

Ouster
Rents

Rents from 3rd Parties Profits from Land

Accounting for Costs of Ownership One Cotenant can compel another to Repairs

Improvements

Implied Fiduciaries

Adverse Possession

Alternative to sale. One co-tenant compensates the other, in cases where one gets more valuable part, or partition by sale yields higher price because one co-tenant made valuable improvements. When one co-tenant denies another co-tenant access to concurrently held prop. Other situation- beginning of Adv. Poss. Majority: Cotenant cannot collect rents unless ousted. OR A agreed to pay B the share OR A stands in fiduciary relationship to B Minority: A must make an accounting to B for Bs share of reasonable rental value A co-owner who receives rents from 3rd party is obligated to account to his cotenants for those rents and share them pro rata. Same rules as rent, but of cotenant permanently removes an asset from the land it must be accounted for to other cotenants for reduction in value. Each is responsible for proportionate share of mortgage, taxes, repairs, maintenance. Pay their share of mortgage / taxes if that cotenant needs reimbursement for having paid a larger share. No obligation with voluntary repairs, cannot force reimbursement without prior agreement. Minority- necessary repairs reimbursed if notice given. No obligation to improve, impoving cotenant cannot compel reimbursement for value added except for cases of partition or by way of deduction from rent owed to the other owners. None unless voluntarily assumed, or one cotenant acts to gain advantage of title via foreclosure sale. Some juris- familial relationships. Not applicable unless one owner gives absolutely clear notice that he claims exclusive and sole title.

Final, quiz, midterm 10 Property I Outline Cavalieri Fall 2013

MARITAL INTERESTS
Common Law System
Dower
Curtesy

2 systems

English- based on feudalism, where ownership was given to the spouse that acquired the prop. Womans legal personhood exchanged from her father to her husband. Continental System- French/Spanish based on community prop. Spouses are a marital partnership. Extinct but aspects exist. Upon marriage a woman lost all legal control over prop to her husband, but acquired some inchoate property rightslifetime support from her husband and dower. Widow had a 1/3 life estate of each of her husbands freehold estates that were decendible. Once attached only removed by wifes consent. Predecessor of spousal elective share. Upon marriage, husband acquired life estate in wifes prop,

MODERN COMMON LAW

I.e. House titled to one spouse only Divorce Prof skills & degrees Rationales for prof skills Rights on death Modern Elective Share
Altered by statute. H & W have separate prop, ownership given to the spouse who acquires it. Belongs to the one spouse. Equitable distribution by statute. States split over how to treat increase in earning capacity obtained during marriage. Some say marital prop (NY). Some states (CO) say not property & no division. Others take middle (NJ) requiring benefited spouse to reimburse for the support supplied. A degree is personal and earned solely. Alternate: The supporting spouse invests in the others degree through labor, $ instead of stock market, etc. Elective Share- substitute for dower. If surviving spouse was written out of the will, entitled to elect statutory share 1/3 to 1/2. Does not apply to life insurance, JT (ROS trumps), inter-vivos gifts. Has to renounce will.

COMMUNITY PROP
I.e. House titled to one spouse only Exceptions Commingling Inception of Right Time of Vesting Pro-rata apportionment Management Divorce Death Creditors rights
Marriage is a partnership of equals, prop acquired during marriage belongs to communally. Includes personal prof purchased with earnings, profits. Doesnt matter, belongs to both. Separate prop acquired prior to marriage, during legal separation, or by gift, devise, inheritance. If separate and comm. prop mixed, becomes community unless one spouse can show otherwise by preponderance of evidence. Three approaches Character of property is fixed at the inception of legal right to possession Some states hold that the character of the prop is determined when title passes. Some states hold that the % of the purchase price paid prior to marriage est. the portion of the prop that is separate; remainder is comm.. prop. H & W have equal management powers. Neither spouse, acting alone, can convey their interest to a stranger. Each spouse entitled to half of comm. prop, all of their separate prop. interest of deceased spouse disposed of according to will. No modern elective share. Debts incurred during marriage presumed to be community obligations, subject to seizure.

Final, quiz, midterm 11 Property I Outline Cavalieri Fall 2013

FUTURE INTERESTS QUIZ NOTES

Conveyance
To A so long as no alcohol the premises are not used for sale of beer, wine or liquor, and if beer, wine, or liquor is sold on the premises O retains a right to re-enter the premises. Subsequently A opens a restaurant that serves several dishes cooked with wine or flamed with brandy, Sun. brunch offers complementary glass of champagne. 11 years later B wants to buy, advise B. To A and her heirs, but if Blackacre is used for any purpose other than agricultural purposes, then O has the right to re-enter and take possession of the land. Same as last prob, but some years after the conveyance, A begins construction of several residences on Blackacre. O has died and devised her entire estate to B. To A and her heirs so long as Blackacre is used for residential purposes only.

Interests
A has? If sold to B?

Answer & Explanation

A = FSD / FSSCS, not selling alcohol its complementary. If sold to B- advise not to have a bar, or check SoL in jurisdiction.

State of title at CL?

O had FSA, gave A FSSCS. O now has RoE.

Same as last prob, but some years after the conveyance, A begins construction of a factory on Blackcare. O has died and devised her entire estate to B To A and her heirs on condition that if Blackacre is used for any purpose other than agricultural purposes, then to B. Same as last prob, but some years after the conveyance, A begins construction of a factory on Blackacre. B has died and devised her entire estate to C. To A and her heirs. A promises, on behalf of her heirs and assigns forever, that Greenacre shall be used solely for agricultural purposes. What is a reversion?

What is the state of title in Blackacre at CL? What is the state of title in Blackacre at CL? What is the state of title in Blackacre at CL? What is the state of title in Blackacre at CL? What is the state of title in Blackacre at CL? What is the state of title in Greenacre at CL? Goes back to original grantor, automatic at termination of lesser estate.

B = RoE, must exercise.

FSD

B has title in FSA.

FSSEL, conditional language but 3rd party.

C, FSSEL, automatic forfeiture

A has FSA. But has covenant, enforceable by injunction and $D, not forfeiture. O conveys vested estate smaller than he owns, he retains this future interest. Example: O has FSA, gives A L.E. = O has reversion. Reversions are divisible & decendible. FS > FT > LE > ToY Reversion, PoR, Right of entry Vested Remainder, Contingent remainder, Executory Interest Shifiting divests a 3rd party, Springint

What estates can a reversion follow? 3 Interests retained by transferor? 3 Interests created in a transferee? What is the difference between shifting and

Final, quiz, midterm 12 Property I Outline Cavalieri Fall 2013

springing executory interest? What does an executory interest divest? What is a vested remainder? What is a vested remainder subject to open? divests the transferor. FSSEL Created in ascertained person, AND not subject to any condition precedent. To A for life, then to Bs children. Remainder is vested in a group of takers. Class is either open or closed- open if possible for others to enter, closed if maximum membership has been set. An interest created in a yet unborn or unascertained person(s), OR is subject to a condition precedent OR both. Somewhat up in the air. O has a reversion in fee simple. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at As death. On the other hand, if A dies before B, Os reversion is divested on As death and will enver become possessory. A has LE, B has vested (meaning no reversion) remainder in FSA, O has nothing. Bs heirs have mere expectancy. A has LE, B has vested remainder in fee tail, O has reversion if fee tail fails. A has LE, B has contingent remainder in FSA, O has reversion until Bs interest vests & contingency gets resolved. A has ToY, O has reversion. A has LE, B has vested remainder for life, O has reversion. If A&B die = C has FSA. What happens when language is different from but if? When A turns 21 To A for life, and in the event of As death to B and her heirs. If O dies before A & B, C has reversion. Condition precedent. Conditional language, FSSCS w RoE B: vested remainder in FSA. in the event of As death means nothing. O has vested remainder. A= LE, B = VR for life, C= VR in FSA, O= nothing A= LE, B= VR for life, C= CR in FSA, O = reversion. A reversion Nothing.

What is a contingent remainder?

To A for life To A for life, then to B and her heirs if B survives A.

O has? O has?

O owns a fee simple and makes the following transfers. In which case is there a reversion? O conveys to A for life, then to B and her heirs. To A for life, then to B and the heirs of her body. To A for life, then to B and her heirs if B attains the age of 21 before A dies. At the time of the conveyance B is 15yo. (If there is a reversion, what happens to it if B reaches 21 during As life?) To A for 20 years. To A for life, then to B for life. O subsequently dies with a will devising all of Os property to C. Then A dies and B dies. Who owns Blackacre?

A has, B has? O has?

A,B, O? A, B, O?

A, O? A, B, O?

Prev. Prob: If B subsequently conveys her interest back to O, what does O have? To A for life, then to B for life, then to C and her heirs. Prev. Prob: Suppose the remainder to C had been Then to C and her heirs if C survives A and B. Where there is a contingent remainder Where there is a vested remainder

O? A, B, C, O? A, B, C, O? O has O has

Final, quiz, midterm 13 Property I Outline Cavalieri Fall 2013

To A and B for their joint lives, then to the survivor in fee simple. Is the remainder vested or contingent? To A for life, then to As children who shall reach 21. As oldest child, B is 17. Is the remainder vested or contingent? A & B have? Survivor has? A has? B has? O has? As other kids? A has? B has? As other kids? B&C have? A & B have, joint life estate. Survivor has: contingent remainder in FSA A has LE, B has contingent remainder in FSA (could have condition precedent), O has reversion if no kids reach 21. As other kids have CR in FSA. B has VR in FSSEL, As other kids have shifting executory interest. B&C have alternative contingent remainders. If B survives A, subjects Bs remainder to the condition precedent of B surviving A. If B does not survive A, O has a reversion.

Prev. prob. B subsequently reaches 21. To A for life, then to B and her heirs if B survives A, and if B does not survive A to C and his heirs.

To A for life, then to B and her heirs, but if B does not survive A to C and his heirs. If after LE is CR, next interest is If after LE is VR, next interest is If there is a pair of CRs, O has To A and his heirs, but if A dies without issue surviving him, to B and her heirs. To A for life, then to B and her heirs, but if B dies under the age of 21, to C and her heirs. B is 15. To A for life, one year later to B and his heirs. `To A and his heirs one year from today. To A for life, then to As children and their heirs, but if at As death he is not survived by any children, then to B and her heirs. A is alive and has no kids. Prev. prob. 2 years later A has twins, C&D.

If B does not survive A, O has? B has? C and B has VR in FSSEL, C has shifting EI, O O? has nothing. CR Executory Interest VR is subject to open, subject to divestment, FSSEL CRCRO A reversion. has A has? B A has FSSEL, B has shifting EI has? A has? B? A has LE, B has VR in FSSEL, C has C? shifting EI O has? B O has reversion in FSSEL, B has has? springing EI O has? A? O has FSSEL, A has springing EI A has? As A has LE, As kids have CR, B has CR. kids? B? O? But if not condition subsequent, sets up when B can take. O has reversion. C&D have? B? O? C&D have VR subject to open, B has EI, O has nothing (once something vests, no reversion) D & heirs of C have FSA. B has nothing (will never vest.) A has LE, B has CR, C&D have CR in FSA, O has reversion.

Prev. prob. Suppose C dies during As lifetime, and A is survived by B & D. To A for life, then to such of As children as survive him, but if none of As children survives him, to B and her heirs. At the time of the conveyance, A is alive and has two children, C and D. After life estate, interest is To A for life, then to B and her heirs, but if A is survived at his death by any children, then to such surviving children and their heirs. A the time of the conveyance, A is alive and has two children, C

D & C? B? A has? B? C&D? O?

B has? C&D have?

A remainder. B has VR (after life estate, no cond. prec.) C&D have EI in FSSEL

Final, quiz, midterm 14 Property I Outline Cavalieri Fall 2013

and D. To A for life, then to B for life, then to Cs heirs. A, B, C and O are all alive at the time of the conveyance. C is unmarried and has two living children, X and Y. To A upon her first wedding anniversary. A is alive and unmarried at the time of the conveyance. O is also then alive. To A for 10 years, then to such of As children as attiain 21. A and O were alive. A had two children, X and Y, ages 20 and 17. What's the difference between a possibility of reverter and a reversion? A, B, C, CS heirs, O?

A has LE, B has VR for life, C has nothing, Cs heirs have CR, O has reversion. A has springing EI, O has FSSEL

A, O?

A, X&Y, O?

A has ToY, X & Y have CR, O has reversion.

1. Reversions can only follow "particular" estates... POR can only follow FSD 2. It's said that possibilities of reverter are "contingent" (i.e., subject to a condition precedent) ....while reversions are always "vested." 3. Reversions are everywhere freely transferable. In some states, possibilities of reverter cannot be transferred. a future interest retained by the grantor to follow a particular estate when the particular estate expires Future interests in someone other than the grantor. Particular estates such as LE, fee tail and non freehold estates. Indefeasibly Vested, Vested Subject to Divestment, and Vested Subject to Open

A reversion is (4 things)

Remainders are Remainders can only follow 3 subcategories of VRs?

Definition of CR? (3 types)

1. a stated event must occur before possession 2. it is conveyed to unascertained persons 3. it is conveyed to unborn persons A remainder is vested if the remainderman is: (a) born and (b) ascertained, and (c) no (stated) event need occur before possession (except expiration of prior, particular estate). DEFINITION of a VESTED REMAINDER (short-form): A remainder is vested if it's not contingent.

Definition of VR?

Final, quiz, midterm 15 Property I Outline Cavalieri Fall 2013

To A for 10 years, then to such of As children as attain 21. A and O were alive. A had two children, X and Y, ages 20 and 17. X later attains age 21 and Y is still under age 21. A and O are both still alive. To A for 10 years, then to such of As children as attain 21. A and O were alive. A had two children, X and Y, ages 20 and 17. X dies when X is age 22 and Y is age 19. O is still alive. To A for life, then to B and her heirs; but if B marries Z, then to C and his heirs. O conveys a sum of money to A if she graduates from college. A is not yet enrolled in college. What is the purpose of RaP? X, Y, O? X has VR in FSSEL or VR subject to open. Y has EI (dont say VR subject to divestment), O has nothing. Xs estate has VR in FSSEL, Y has shifting EI, O has nothing.

X, Y, O?

A, B, C, O?

A, O?

A: LE, B=FR in FSSEEL, C=EI, O=nothing (because of comma, no alt. cont. remainders) A has springing EI in FSA. O has FSSEL

Rule for RaP?

What interests does RaP apply to? What isnt subject to RaP?

Designed to reduce dead hand control, further alienability. Control to deceased owner but not infinite No interest is good unless it must vest, if at all, not later than 21 years, after some life in being at creation of. Have to know if will resolve within 21 years of measuring life. Only applies to interests that arent fully vested at conveyance: CR, VRSTO, EI, class gift VR in FSA, VR in FSSEL, FI in O (only 3rd parties)

Steps to RaP application?

O transfers a sum in trust for A for life, then to As first child to reach 21.

O transfers a sum in trust for A for life, then to As first child to reach 25. A has no child age 25 or older.

1. Name all interests aand determine if subject to RaP. 2. Determine if the interest might not vest within 21 years a life in being (perpetuity period). 3. If no validating life, interest is voide & must strike it from conveyance. Invalid. A is the validating life. You can prove that any child of A who reaches 21 will necessarily reach 21 within 21years of As death. The remainder must vest or fail within this period; it cannot possibly vest more than 21 years after A dies. The remainder is valid. A=LE (no RAP), As 1st child-CR (RaP, A = validating life, interest is valid. There is no validating life; the contingent remainder is void. You cannot prove that As first child to reach 25 will do so within 21 years after As death. CR in As first child to reach 25. Will not

Final, quiz, midterm 16 Property I Outline Cavalieri Fall 2013

know within 21 years, invalid, no validating life. Step 3- cross out As 1st child to reach 25 and now is, In trust to A for life. O has reversion. A has LE, B has CR. Will we know within 21 years? Validating life is not A is B. Will know when B dies, interest is valid. Failure to vest resolves contingency. We have a named party, sometimes implied party is ok for measuring life. A=LE, As kids: CR for life (valid, will know if it will vest at As death). B:CR (valid life, valid interest) Bs heirs: CR, unascertained condition precedent, valid. A is the validating life. This would be a class gift. B has a VRSTO, Bs possible siblings have EI. Because of the class gift, would not possibly resolve itself within 21. Invalid. So we would strike after to A for life. For RAP, its either all good or all bad. Since the possible siblings are bad, Bs conveyance is bad too.

To A for life, then to B if B attains the age of 30. B is now 2 years old.

A, B?

To A for life, then to As children for their lives, then to B if B is then alive, and if B is not then alive, to Bs heirs. Assume that A has no children at the time of conveyance. A says A for life, then to As kids who reach 25 B is 26 yo.

RAP?

LANDLORD TENANT MIDTERM NOTES

Leaseholds
Leasehold = interest in land Death of LL or T: Common Law says no effect but some crts hold leasehold to be personal, so death is then terminated.

Tenant holds property Leasehold

Landlord or LL Agent future interest (reversion/remainder, property goes back to LL or LL agent)

1. Tenancy for Years (Term of Years)

Fixed period, easy to surrender, automatic termination. Lease for a set period of time and expires without notice. Can last for days or years (dont be confused by the years in term) Begins at a fixed point, expires at a fixed point without notice Fixed Period of Time o Can last days or years. (e.g. 10 days or 10 years)

Final, quiz, midterm 17 Property I Outline Cavalieri Fall 2013 o Termination date is certain. o Always has an endpoint defined. Creation o Written under SoF if more than a year o Can be oral if less than 1 year Termination o Is automatic. o Expires at a fixed point without notice. Surrender o Does not require formalities

2. Periodic Tenancies
Continues for a designated period, no pre-determined end, technical termination: notice required to terminate Continues from year to year for periods of time. Informal lease often created by implication Example: friend says write a chek for $1K per month, let me know when you leave.

(Death of Landlord or Tenant) Common law says no effect But some courts hold leasehold to be personal, so if death occurs then terminated To leave Periodic Tenancy: o Any periodic tenancy that is 6 months or more does not require more than 6 months o Less than 6 months requires 1 full period of notice. Reforms by Jurisdiction for Period Tenancy o Policy Rationale: Reforms are meant to respond to disproportionate power between LL and tenant o Reform 1- softened year notice of requiring one full period of notice. Typically says 30 days before end of term. Example: term by 12/1/13, notice by 11/1/13 o Reform 2- notice given will be effective 30 days later Many states permid a month to month tenancy at any time after 30 days notice. Example: give notice Oct 2, term ends on Nov2. Pay just 1 extra day, not month. Periodic Tenancy Creation 3 ways: o 1. By Express Agreement E.g. L leases to T from month to month o 2. By Implication Can be an informal lease created by implication

Final, quiz, midterm 18 Property I Outline Cavalieri Fall 2013 a. E.g. friend says, write me a check for $1K per month, let me know when you leave. o 3. By Operation of Law Tenant Holds Over: a. Where notice is not given, lease is automatically renewed. b. LL can treat as a new PT on same terms of old lease, or as TaW Termination- Notice Required o Goes on until one party gives notice of termination Either party may give notice to terminate. o To leave Period Tenancy: Any periodic tenancy that is 6 months or more does not require more than 6 months notice Less than 6 months requires 1 full period of notice. a. E.g. lease began 1/1/13, to terminate on 1/1/14, notice by 6/30/13 or 7/1/13. If notice by 7/6/13, term on 1/1/15. Reforms by Jurisdiction for Period Tenancy o Policy Rationale: Reforms are meant to respond to disproportionate power between LL and tenant o Reform 1- softened year notice of requiring one full period of notice. Typically says 30 days before end of term. Example: term by 12/1/13, notice by 11/1/13 o Reform 2- notice given will be effective 30 days later Many states permit a month to month tenancy at any time after 30 days notice. Example: give notice Oct 2, term ends on Nov2. Pay just 1 extra day, not month.

3. Tenancies at Will
No fixed period Endures at the will of the parties Ends at the death of 1 of the parties Rare TaW runs into period tenancy if payment expected. Doesnt involve payment of money Creation o No fixed period o Endures at the will of the parties o Rare o TaW runs into period tenancy if payment expected. Doesnt involve payment of money o Difficult to get a lease interpreted as tenancy at will; courts may interpret it as a periodic tenancy Termination

Final, quiz, midterm 19 Property I Outline Cavalieri Fall 2013 o Indefinite renting, ends when: Terminated by either party or One party dies o Reciprocal rights: Usually 30 days notice of termination required 4. Tenancies at Sufferance (Holdover) Arises when tenant doesnt leave Common law creates 2 choices. o 1. Eviction + money damages o 2. New tenancy as a new leashold. Major jurisdictions say its a periodic tenancy thats implied Minor jurisdictions say it is a new lease with the same terms. Arises when T remains in possession after termination of tenancy The tenancy lasts until T is evicted or L elects to hold over for another term. o LL can evict with damages, OR o LL consents and they pay same terms or month-to-month (max new term is one year) Maj. Of juris say a periodic tenancy created on holdover, but min say a new term of years created (if holding over on original term of years lease).

Lease tells rights and responsibilities. If no lease, implied rights, responsibilities and duties. Lease is set up to be equal power between parties, but most of the time when a lease is formed the tenant cant negotiate, doesnt know their rights by jurisdiction.

Conveyance Common law English Rule Under traditional legal doctrine, different from K Conveyance vs. Contracts o Policy The way we deal with land from one to another is special Concerns property rights o Last 30-40 years, there has been a softening so that it now resembles K law more. Increasing movement to exchange promises Leases now are a fusion between K and leases Gives rights to tenants and new remedies with certain protections.

Fair Housing Act (FHA) Addresses how people are treated in the rental and sale of property. Is not state based.

Final, quiz, midterm 20 Property I Outline Cavalieri Fall 2013 Statues must not confliction with the Constitution, but can add weight to constitutional issues.

Constitutions Equal Protection Clause

Statutory enacted by Congress

ADA, CRA and FHA Is statutory and not constitutional. o Congress has given power to them by Const. and can regulate housing, commerce among the states

CRA (Civil Rights Act) Bared public and private discrimination (not just dwellings Only concerned with race.

FHA 3604 Exemptions o Religions orgs in certain circumstances, seniors, 3603 o But big rule is no discrimination o Ex: single family house sold or rented by owner, if they own 3 or fewer But if you are in the business of real estate you cant discriminate So only personal owners (Freedom of Association Constitutional issue, which trumps FHA) Cant advertise discrimination Stereotype threat o Is deleterious to society and affects the environment If you discriminate in advertising you lose your exemption Attorneys, title companies, other professionals can serve small landlords (Mrs. Murphy) who are discriminatory Small landlords who live on premises with no more than 5 families in rooms/units If not exempted under 3603 o Cannot refuse to rent/sell based on___ o Cannot advertise preference for o Cannot discriminate person with handicap if They pay for reasonable modification Cannot refuse to make reasonable accommodation

Final, quiz, midterm 21 Property I Outline Cavalieri Fall 2013 Have to construct new multifamily dwellings accessible to handicap persons

FHA applies to all single family homes owned by private citizens who use a broker & have less than for homes. All single family homes owned by corps/partnerships qualify and are under the FHA. FHA Examples from Book: Ratios/no. of children. OK 4 people OK No more than 2 children = not okay Can refuse rent to unmarried couples, gay/lesbians. But sexual harassment is not okay HIV/AIDs Status- violation Direct threat/ harm substantial damage = ok No schizos with violent tendencies who might damage the property = ok FHA says smoking not a handicap/disability. No smokers okay to use if deleterious effects of 2nd hand smoke.

FHA Applies to: Discrimination is defined as a specific class on the grounds of: o Race, color, religion, sex, familial status, national origin, disability o Needs to be on the grounds of a protected class. States can have municipality ordinances which further define protected classes o Example: gays & lesbians in SF No state can nullify the FHA, it is federal law.

Holdovers: Legal vs. Actual Possession Ex: Hannan v. Dusch o P leased from D, holdover tenant was still in possession. English Rule: o LL has implied covenant to deliver possession o Only applies on the day that the lease begins Day 1: T can sue LL Day 2: T must sue holdover o T can terminate lease and then can sue LL for damages. Day 1: terminate lease Day 2: damages (hotel, storage o Contradicts public policy purpose, no one would willingly contract to a lawsuit. American Rule: o T should oust trespassers, LL to deliver legal possession, not actual possession. o No implied covenant o Day 1: T must sue holdover for possession and damages.

Final, quiz, midterm 22 Property I Outline Cavalieri Fall 2013 Some juris follow American, some English Subrules for both: o 1. If you cant take possession on start date, no obligation to pay rent & may collect damages. Where entry is delayed, dont have to pay. o 2. If there is a 3rd party (holdover) only partially in possession, T can take possession of remainder and then abate the rent (subtract part you dont have possession of.) If lease says nothing about delivery of RoP, goes to default rule in jurisdiction. To get around, lease can include delivery of possession. Contracting around default rule: Default Rules American rule English rule

RoP (Solution: K around default rules) Sublease or Assignment Can have different kinds of promises passed on or retained between the two. Frequently mislabeled. Most crts will look at what the parties actually did, or look at intentions and define them as such. Sublease o Anything less than entire interest o Right of Entry is retained, reversion Assignment o Entire lease (residual term) is transferred Denying Assignments Ex: Kendall v. Ernest Pestana Majority rule: LL can unreasonably and arbitrarily deny consent to assignment. o Lessors decision o Court shouldnt rewrite K (response- making you live up to K) o Stare decisis o Lessor should get the benefit from the increased value (should build rent increases) Minority Rule: LL only may withhold consent for commercially reasonable justification. o 1. Financial unsuitability rationale (credit worthiness) o 2. Condition / possibility of harm to premises. Depends on: Nature of occupancy Unsuitability Need for alterations

Final, quiz, midterm 23 Property I Outline Cavalieri Fall 2013 o Why minority rule is better: Modern law disfavors restraint on alienability (efficiency rationale) We like the property to go from one to another Promotes good faith & fair dealing (fairness rationale) We now prefer the K model & feel its a better approach Minority rule is now the dominant rule. Denying Assignments w Residential Leases Follows the majority rule from Kendall Duty to mitigate undermines right to refuse

Holdovers: Self Help Ex: Berg v. Wiley Commercial lease for property, restaurant LL locked out T when closed for remodeling Contract Law says self help ok if: o LL entitled to possession AND o Peaceable entry Modern rule: o Self help is disfavored. Self help is only a remedy in the past. Law is more evolved now, must seek judicial ejectment. New Model: o Summary proceedings o Bars T from raising LLs breach o Newest rule allows T to bring some defenses

Lease Abandonment / Surrender Ex: Summer v. Kidel o Involved abandonment of new lease. D could not get lease because he broke off engagement. o LL did not lease out, damages were 1+ years of rent. Rule: Duty to mitigate damages, like K Surrender: o T free of obligation to pay rent but only from moment of surrender. o T must still pay back rent, retrospectively owed o Takes qualities from K law: Acts as an offer from T: Let out of lease? Acceptance: Yes from LL Abandonment: o Implied offer of surrender Common Law rule:

Final, quiz, midterm 24 Property I Outline Cavalieri Fall 2013 o If you have lease, obligated to pay. o If you abandon/offer to surrender, no duty to mitigate. Modern rule: o Like K law, duty to mitigate and minimize damages. o Must act with good faith and fair dealing. o Exercise reasonable diligence in mitigation. Duty to Mitigate Residential LL can deny a sublease arbitrarily but must mitigate damages. o Also cannot request back rent from defaulting subtenant. DtM can fall on either party Majority rule: T must bear burden to show reasonable diligence o Reasonable diligence being advertising, showing apt, etc. o Finding someone to take over your lease. Minority rule: LL must bear burden to show reasonable diligence T in default pays expenses incurred in mitigation for LL to find new T. Residential Leases and DtM o Should original T wish to transfer lease, LL can arbitrarily refuse. o But DtM trumps, LL must show due diligence to decrease damages. Makes it harder to collect unpaid rent. Shows how conveyance is migrating toward K law o Any substitute in K law is suitable. LL cant refuse alternative & hold T liable for total unpaid rent. Reasonable good faith effort to mitigate damages, if failed then can collect damages on unpaid lease. o LL who fails to mitigate typically still tries to collect damages But crts say no damages available, therefore no $D LL could recover difference between agreed rent & avoidable loss. o Ex: If market for rent changes & price falls, LL gets incidental, consequential damages $1000 rent previously, now reasonable market cost is only $750. LL gets $250 in $D If failure to mitigate, LL gets agreed rent X reasonable recovery DtM is a mandatory rule.

LL Remedy When T Breaches

1. Sue for back rent + damages a. LL can sue for retrospective rent + $D (e.g. broken window) 2. Eviction a. Terminate lease & retake possession 3. Anticipatory Breach a. Repudiated K b. LL can collect future unpaid rent which cannot be reasonable avoided despite DtM, post eviction. c. Doctrine not followed by every jurisdiction.

Final, quiz, midterm 25 Property I Outline Cavalieri Fall 2013 d. If T abandons, repudiated contract. Most jurisdictions allow whole & remainder of lease as collectible. e. If the jurisdiction says no anticipatory breach (no money damages for retrospective rent) then the accelerated damage clause overrides anticipatory breach theory.

Protective Devices
Security Deposit o Supposed to be insurance for unanticipated damages. Problem is T never gets it back. o But remedy for T who wont leave & wont pay. o Remedies to T in some jurisdictions: Requirement to limit amount Make LL trustee Hold $ in escrow Require separate account for security deposit LL pays interest Return in 30 days, or itemized list of costs. If not done, then treble damages. o Once lease is signed, T responsible for damages. This makes it so T has no incentive to fix anything, doesnt bear costs other than the security deposit. o LL often will try to redefine security deposit as liquidated damages or advanced rent. Accelerated Damage Clause o In some lease contracts o When T breaches, entire remainder of the lease is due. If T pays entire remainder, can continue possession. o If the jurisdiction says no anticipatory breach (no money damages for retrospective rent) then the accelerated damage clause overrides anticipatory breach theory.

Implied Covenant of Quiet Enjoyment (ICQE)

Refers to: What is the condition the premises need to be in and what does LL owe as per K? o Covenant = promise o Implied = goes in all leases o Quiet Enjoyment = uninterrupted & in an unencumbered fashion Ex: Reste Realty v. Cooper 1969 o Where ICQE is substantially breached, T has remedy in constructive eviction Substantial Breach of ICQE= Act/omission that renders premises unsuitable for purpose

Constructive Eviction

Final, quiz, midterm 26 Property I Outline Cavalieri Fall 2013 Significantly interferes w/ beneficial enjoyment Similar to implied warranty of merchantability in K law o Cons. Evic.= it is as if T has been evicted BUT T must abandon within reasonable time. Allows term of rent (must give notice) o Early Common Law: LL owed no duty after lease. The only breach of ICQE was interference with lease. o Modern Law: Has relationship between ICQE and Constructive Eviction. Breach so bad, as if T was evicted, so T has remedies. Breach Remedies for Landlord 1. Back rent + $D 2. Terminate lease and retake possession 3. Anticipatory breach (generally disfavored by crts) a. Only $D = mitigation D (consequential damages) 4. Repudiated Contract a. LL can collect on the whole lease b. Only some jurisdictions c. If allowed, & T has abandoned by offer of surrender / left, repudiated K available d. Narrow remedy because of requirements

Conveyance = enriched by K law

K conveyance K K Doctrinal aspects of K law: Implied warranty of habitability Duty to mitigate damages Good faith requirements, etc. ICQE: Both residential and commercial, but for residential, IWH applies Substantial breach of ICQE o You get to invoke Constructive Eviction o Relieved of rent if T departs within reasonable time. Major Breach, but less than substantial breach (Illusory: Many people dont o Invoke dependant covenants, e.g. broken window have $ to sue) Lesser Breach o T stays and sues for $D In exam, explain the above as:

Final, quiz, midterm 27 Property I Outline Cavalieri Fall 2013 ICQE provides ____, when there is substantial breach this could be resolved by ______. Where there is major breach ___, and if lesser breach ____. This looks like ___, therefore ___ applies, which would result in ____.

Illegal Lease Doctrine (disfavored, but theory to contemplate) If lease had substantial code violation & LL knows, the lease is unenforceable as an illegal K. o Argument that its against public policy- doesnt live up to rules of the law. LL only entitled to reasonable rental value of premises. This could be $0 if bad enough.

Implied Warranty of Habitability (IWH) Runs whole lease period Covers patent (obvious) and latent (hidden) defects Implied in every residential lease Says safe, clean, fit for human habitation Must be substantial violation, not minimum. To make IWH claim o Must be uninhabitable to a reasonable person standard If the problem is made by T, claim is not available o Violation of local housing code o Violation of health & safety T must give reasonable time to resolve problem o No hot water for 12 hours? Not available. Weeks? Months? Yes. Ex: Hilder v. St. Peter LL premises uninhabitable because of water, lock, toilet, no heat etc. T stayed 14 months, paid all rent, later sued for $D Caveat Lessee= renter beware Under Common Law, T still had to pay unless abandoned for substantial breach under constructive eviction IWH is: o Only residential o Sometimes doesnt include single family homes Not adopted everywhere but the modern interpretation Examples of IWH violations: o Bed bugs- even though its not a health and safety violation. o Aircondition o 2nd hand smoke Cannot contract around IWH, implied in every residential lease.

IWH: Ways to Invoke Remedy 1. Stay, pay & sue for reimbursement o Acts as rescission and reformation

Final, quiz, midterm 28 Property I Outline Cavalieri Fall 2013 2. Stay, withhold rent, when LL sues for back rent T raises IWH breach as defense o Doesnt relief all rent obligation, but no eviction & crt reforms the K. o Must give notice Have LL on notice & with ability to repair in a reasonable time. E.g. send a letter Defect occurs when withhold occurs 3. Repair & deduct $D (only in some juris) o Must give notice & time o E.g. call a plumber, save receipt, deduct $ from rent. 4. Terminate, sue for $D o In amount of overpayment from date of breach. o Money awarded = value of premises in defective condition.