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Pejman Property US Module (Adverse Possession and Leases/Subleases/Assignments)

Adverse Possession
Canadian:
1)
2)
3)
4)
5)
6)
7)

possession for 10 years


notorious
open
adverse
peaceful
physical control
exclusivity
US: to gain title the adverse possessor must possess; land in a way that is
1) actual
2) exclusive
3) open and notorious
4) Hostile Agg. Trespasser
5) Continuous/uninterrupted
6) For statutory period

Defining Hostility in the US

Aggressive Trespasser
Dont care if it was a mistake or not
Innocent/good faith

This does vary by state. Every state has one of these three measures/mechanism. This makes it
a good test. If on the exam, you are not given a statute or a state jurisdiction, you should be able
to spin the argument in any 3 ways.

Primary Difference between US and Canada;


US: we do not want to read minds so we do not care for intended use or consent used in
Canada. There is no inconsistent use test in the US. Intended use/or test of inconsistent use in
Canada is really difficult to decompose, which explains why adverse possession is coming off the
books.

So what does hostile mean in the US if inconsistent with owner test is not to be used?
Hostility in the US is hostility towards the titleholders title, hostile to them remaining as a
titleholder. Two people cannot pretend like the paper titleholder.

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1) Contrary to hostile to the intended use of the property Canada, in the US, hostility is a
softer measure (hostile to the title holder remaining on title, that is all.)

2) Non-permissive and non-derivative


These two factors define hostility in the US. If I am a tenant, my status is derived from the owner,
so I cannot claim adverse possession.

How is actual different in the US v. Canada:


How do you have actual without making your use exclusive, open, notorious, etc...You have got to
go through the whole list, each element one at a time.

Gorskis case:

Actual > check


Exclusive> check
Open and Notorious > kind of a gray area, was it open and notorious enough? Open and
notorious were defined to the extent that the owner had knowledge of this usage by adverse
possessor? 15 inches, is that open and notorious enough? The answer: visible enough for the
owner to see. Actual knowledge is not required but if actual knowledge is established then open
and notorious are satisfied.

Howard v. Kunto
Facts: paper titles did not match the actual descriptions of the lands. They were swapped around.
Privity: a relationship between parties that gives them the right to use each other over a shared right.
In the past, you could not sue someone unless you were in a relationship of some sort with them,
basically if you had privity of some sort.

Today only different kinds of privity exist > Privity of Contracts and Privity of Estate

A adversely possesses 7 yrs


A sells the land to B
B adversely posses for 3 year
Can B win against the actual titleholder, if the requirement is 10 years of adverse possession?

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Answer: yes if there is privity of state between A and B. If A did this in a friendly way, gift, sale,
inheritance, then YES, privity of state is established and we can tack the two periods too. 7 + 3 = 10
YES

What if it was not in a friendly way? If B got the land by means of force (came with a shot gun and
said A get off) and B takes the land by adversity, then we can not tack the years. Just look for whether
it was a friendly transfer or adversarial.

US Module November 16, 2011


LEASES

Lease: Estate and a contractual agreement, so it has some features from both speheres.
Terms of Years in the US = Fixed Term Lease in Canada
Periodic Tenancy
Sub-leases and Assignments
Sublease: Transfer of a part of the durational of the original lease

If you lease a section of the party fo the whole duration> it is a partial assignment
If however you have lease the whole section for a part of the full duration of time > partial sublease

Assignment or partial assignment


Sub-lease or partial sublease

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*Sub means part of the whole property


*The difference between assignment and lease > in duration
* Assignment is giving the property or part of it away for the whole duration of the original lease
whereas sublease is given the property to another part for PART of the full duration of the
original duration

Privity of Contract > two party has a relationship that permits either to sue the other on
certain grounds.

Here there is also privity of estate

The Test for deicding whether something is a sub-lease or an assignment?

First is there any privity


What kind of privity

Lease Examples:

Original:

L ------- T (There is privity of contract and there is also privity of estate)

Example imagine this line to be the feel simple absolute of the original landlod

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-------------------------- if a Tenant enters into the lane anywher, both T and L have interst in the
land.

T = ty
L = Rerversion Absolute Fee Simple AFS

Sublease

L ----- T > T2

IF it is a sublease, then T2 Estate < T estate (smaller duration of time)


When sublease ends, there is privity of estate between T and T2
When the original ends the property goes back to landlord from T only.
If rent is not paid by T2 during the duration assigned to T2 > Landlord can not sue > There is NO
privity of contract between Landlord and T2 > also there is NO privity of estate
So if the sub tenant commits a breach, the landlord has to go through the original tenant T to collect
from T2.

Hypo

IF T2s duration ends at the end of duration assigned to T > guess what this is an assignment. T gave
the remainder her their duration, their entire remainder of their duration to T2 > Assignment.
Here there is no privity of contract because T assigned T2 not the landlord but there is privity of
estate between landlord and T2

Real Covenants (Anything that pretty much touches the dirt per se of the land, pretty encompassing)

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Duty to pay rent


Duty to park where you park
How many people live there

Non-real Covenant/Personal Covenance

You can not pay the rent by cash, pay by check and send it to some address to Toronto.
This is a form of convenience with regards to the form of payment.
If the tenant shows up at the office with 500 dollars cash and say here is my rent, the
super can refuse to take the rent but the landlord can not practically sue for nonpayment of rent

Notice that most leases do not allow subleases and if they do, the landlord would want to sign a
whole new contract with the subleaser to get some rights.

Sublease = L -- T1 > T2
Assignment = L <..> T1 > T2
(landlord has privity of contract and estate with T1 and landlord has privity of estate with T2, the
landlord can sue T1 with regards to real covenants and personal ones and T1 can sue the landlord
over the same things. Now the landlord can only sue T2 over REAL covenants because there is only
privity of estate with landlord and T2)

US Property Module, November 16, 2011 Posted Notes


The Leasehold Estate

Exam Writing Tips

There are certain things that you have to have in an essay before any content is looked at
Look at the Rubric that Ballion will post on CLEW
IRAC it is
I > Issue is the Q being asked, what is it? What sub questions are being asked, those would be
the sub questions to answer
R > Answer to Q being asked without facts of this question. It is the rule that is general and is
true for everybody. It is the rule true for all sorts of facts. There are no names or facts of this

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problem in this area. Sort of like there is privity of estate between landlord and the original
tennant but no such thing exists between landlord and a subtenant.
A > Asnwer relying on the Rule with facts and names mentioned of this very problem. In this
case landlord Sam is the landlord to tenant Bob but not a landlord to subtenant Rob. So
there is no privity between landlord and Rob.
C > Answer (brief)

BE REDUNDANT > THAT IS WHAT PROFESSORS WANT TO SEE SERIOISLY!

Pejman US Property Module

Problem No. 1: The Tenancy At Will

In 1977 Robert Donovan owned a house located in Potsdam, New York. On April 14 of that
year he leased the premises to the tenant Lou Gerrish. The lease was executed on a printed form and
it appears that neither side was represented by counsel. The blanks on the form were filled in by
Donovan who provided the names of the parties, described the property and fixed the rent at $100 a
month. With respect to the duration of the tenancy the lease provides it shall continue for and
during the term of quiet enjoyment from the first day of May, 1977 which term will end Lou Gerrish
has the privilege of termination [sic] this agreement at a date of his own choice (emphasis added to
indicate handwritten and typewritten additions to the printed form). The lease also contains a
standard reference to the landlord's right to reentry if the rent is not timely paid, which is qualified
by the handwritten statement: Lou has thirty days grace for payment.

Gerrish moved into the house and continued to reside there, apparently without incident,
until Donovan died in November of 1981. At that point David Garner, executor of Donovan's estate,
served Gerrish with a notice to quit the premises. When Gerrish refused, Garner commenced this
summary proceeding to have him evicted. Petitioner contended that the lease created a tenancy at
will because it failed to state a definite term. In his answering affidavit, the tenant alleged that he had
always paid the rent specified in the lease. He also contended that the lease granted him a tenancy for
life, unless he elects to surrender possession during his lifetime.

Question: Does Gerrish have a lease or a life estate? (This is the Issue)
To answer this question, you will need to
(a)

state the Rules youll need define both a lease (in this case, a tenancy at will) and a
life estate;

Tenancy at Will
a.

Identifying feature = No definite termination date

b.

Duration = as long as both parties so will

c.

i.

No fixed period

ii.

Cannot last longer than the parties themselves

Termination
i.

Personal to parties and therefore ends


(a)

When either party desires

(b)

When either party dies

ii.

Personal to parties and therefore not transferrable or assignable

iii.

Most states require certain minimum period of notice to terminate


(often corresponds to periods set forth for payment of rent)

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iv.

Life Estate

(b)

When rent is paid according to a schedule, obvious issue will be


whether tenancy is at will or periodic

to A for
life

Terminates:
Naturally

When A dies

Future interest
that follows:
Reversion

If held by 3rd
party:
Remainder

find facts that seem to satisfy the definition of one or the other (or both) and detail
them (Analysis, Part One);
Tenancy at Will:
No definite termination date, Lou Garrish has privilege of selecting termination date. No
fixed duration for how long it can last
Termination is personal to Lou Garrish who can determine when the lease ends as per
the agreement

(c)

evaluate whatever picture emerges from this analysis of the facts (Analysis, Part
Two) in order to

(d)

determine which definition best fits these facts (Conclusion)

Tenancy at will since termination is person and Garrish was not given a life estate
which terminates upon death

Problem No. 2: The Tenancy at Sufference (Holdovers)

On February 5, 1964, the appellant, Crechale and Polles, Inc., a Mississippi corporation,
entered into a lease agreement with appellees, John D. Smith, Jr. and Mrs. Gloria Smith, with appellant
as lessor and appellees as lessees. The lease was for a term of five (5) years commencing February 7,
1964, and expiring February 6, 1969, with rental in the amount of one thousand two hundred fifty
dollars ($1,250.00) per month.

Smith was informed near the end of his lease that the new building which he planned to
occupy would not be complete until a month or two after his present lease expired. With this in mind,
he arranged a meeting with his landlord, Crechale, in late December, 1968, or early January, 1969, for
the purpose of negotiating an extension of the lease on a month-to-month basis. The outcome of this
meeting is one of the focal points of this appeal and the parties' stories sharply conflict. Crechale
maintains that he told Smith that since he was trying to sell the property, he did not want to get

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involved in any month-to-month rental. Smith asserts that Crechale informed him that he was trying
to sell the building, but that he could stay in it until it was sold or Smith's new building was ready.
Smith's attorney drafted a thirty (30) day extension, but Crechale refused to sign it, saying, Oh, go
ahead. It's all right. Crechale denies that he was ever given the document to sign.

The following is a chronological explanation of the events which led to the subsequent
litigation:

February 4, 1969-Smith sent a letter to Crechale confirming their oral agreement to extend
the lease on a monthly basis.
February 6, 1969-Crechale wrote Smith denying the existence of any oral agreement
concerning extension of the lease and requesting that Smith quit and vacate the premises
upon expiration of the term at midnight, February 6, 1969. The letter also advised Smith that
he was subject to payment of double rent for any holdover.
March 3, 1969-Smith paid rent for the period of February to March. The check was accepted
and cashed by Crechale.
April 6, 1969-Smith paid rent for the period of March to April, but the check was not
accepted by Chechale, because it was for final payment.
April 7, 1969-Smith sent a telegram to Crechale stating that he was tendering the premises
for purposes of lessor's inventory. The telegram confirmed a telephone conversation earlier
that day in which Crechale refused to inventory the building.
April 19, 1969-Approximately three and one-half (3 1/2) months after the expiration of the
lease, Crechale's attorney wrote Smith stating that since the lessee had held over beyond the
normal term, the lessor was treating this as a renewal of the lease for a new term expiring
February 6, 1974.
April 24, 1969-Smith again tendered the check for the final month's occupancy and it was
rejected by Crechale.
April 29, 1969-Crechale's attorney wrote Smith again stating the lessor's intention to
consider the lessees' holdover as a renewal of the terms of the lease. There was no further
communication between the parties until a letter dated May 15, 1970, from Crechale to
Smith requesting that Smith pay the past-due rent or vacate the premises.
May 27, 1970-Smith's attorney tendered the keys to the premises to Crechale.

Subsequently, this lawsuit was filed by Crechale to recover back rent and damages beyond
ordinary wear and tear to the leasehold premises.

The appellant, Crechale and Polles, Inc., contends that the appellees became holdover
tenants for a new term under the contract at the election of the landlord appellant, and that appellees
owe appellant the rent due each month up to the filing of suit, less the rent paid . . .

Questions:
1.

What is a holdover tenant?

Tenancy at Sufferance / Holdovers

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a.

Identifying feature: Tenant retains possession of property without


landowners consent after termination of a prior valid leasehold.

b.

Duration = only until Landowner chooses response

c.

Termination
i.

d.

2.

Landowner has choice of either


(a)

Treating holdover possessor as trespasser OR

(b)

Consent to holdover as a renewal of prior leasehold

ii.

Once Landowner chooses, thats that Landowner cant change


mind, Tenant cant get out of whichever L. chose

iii.

Ls consent to renewal of tenancy can be express or implied

If renewal is granted or implied


i.

Terms usually same as terms of prior tenancy

ii.

If prior tenancy was periodic, new tenancy may cover only one
period

What are the permissible ways of dealing with a holdover situation, and who gets to
choose which way applies in a given holdover?

Landowner has choice of either


(a)

Treating holdover possessor as trespasser OR

(b)

Consent to holdover as a renewal of prior leasehold

Once Landowner chooses, thats that Landowner cant change mind,


Tenant cant get out of whichever L. chose

3.

In this problem, who had the right to choose the resolution of this holdover
situation? What did that party choose? When did they choose it? How do you
know? Be specific; list specific facts that support your contentions.

Landowner/lessor in this case has right to choose resolution of the holdover situation;
Lessor chose to treat it as a renewal of the lease.

April 19, 1969-Approximately three and one-half (3 1/2) months after the expiration of the
lease, Crechale's attorney wrote Smith stating that since the lessee had held over beyond the

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normal term, the lessor was treating this as a renewal of the lease for a new term expiring
February 6, 1974.

April 29, 1969-Crechale's attorney wrote Smith again stating the lessor's intention to
consider the lessees' holdover as a renewal of the terms of the lease.

4.

Once the choice was made, what did each party do next? What was the legal effect of
their subsequent actions? What rule tells you that is the legal effect?

There was no further communication between the parties until a letter dated May 15, 1970,
from Crechale to Smith requesting that Smith pay the past-due rent or vacate the premises.
May 27, 1970-Smith's attorney tendered the keys to the premises to Crechale.

5.

At the end of all the events set forth in the problem, is there a lease between Smith
and Crechale or not? How do you know? Yes it was an implied lease.

Problem No. 3: Delivery of Possession

The declaration filed by the plaintiff, Hannan, against the defendant, Dusch, alleges that
Dusch had on August 31, 1927, leased to the plaintiff certain real estate in the city of Norfolk,
Virginia, therein described, for fifteen years, the term to begin January 1, 1928, at a specified rental;
that it thereupon became and was the duty of the defendant to see to it that the premises leased by
the defendant to the plaintiff should be open for entry by him on January 1, 1928, the beginning of
the term, and to put said petitioner in possession of the premises on that date; that the petitioner was
willing and ready to enter upon and take possession of the leased property, and so informed the
defendant; yet the defendant failed and refused to put the plaintiff in possession or to keep the
property open for him at that time or on any subsequent date; and that the defendant suffered to
remain on said property a certain tenant or tenants who occupied a portion or portions thereof, and
refused to take legal or other action to oust said tenants or to compel their removal from the
property so occupied. Plaintiff alleged damages which he had suffered by reason of this alleged
breach of the contract and deed, and sought to recover such damages in the action. There is no
express covenant as to the delivery of the premises nor for the quiet possession of the premises by
the lessee.

The defendant demurred to the declaration on several grounds, one of which was that under
the lease set out in said declaration the right of possession was vested in said plaintiff and there was

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no duty as upon the defendant, as alleged in said declaration, to see that the premises were open for
entry by said plaintiff.

Questions:
1. As set forth in the outline, tenants have a right to possess the leased property upon
commencement of the leasehold. In this problem, Hannan showed up on the day the lease
was to begin only to find the previous tenant still there. Is this Hannans problem, or
Duschs? How do you know?

Commencement of leasehold = delivery of right of possession to Tenant.


-

If Landowner creates problem, Landowner is liable. Problems created by


Landowner include problems created by anyone claiming through or adversely to
Ls interests

If third party creates problem ....(i.e., a holdover possessor or a trespasser), solution


varies:
a.

Under the American rule = L has duty to transfer only the RIGHT to
possession. If someone other than the Landowner interferes with Ts
possession, thats Ts problem (and T must solve it alone).

b.

Under the English rule = L has duty to transfer ACTUAL possession, and if
a third party prevents T from taking possession, L has a duty to fix the
problem

State the applicable rules; identify which rule or rules should govern this particular fact
pattern; set forth as many legally relevant facts from the problem as you can find; state
explicitly how those facts do or do not satisfy or fit the rule you identified as the governing
rule; and state what conclusion must therefore follow.
-

Landlord at fault since refused to vacate these previous tenants and refused to take legal
or other action to remove them from the premises. Landlord is thus liable since he is
obligated to deliver right of possession to tenant when the leasehold commences and
failed to do this since prior tenants were occupying the property.
-Landowner problem includes problem created by someone claiming through the
landlords interests, which is what the tenants occupying the property were doing.

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