I.

Theories of Property property? = peoples rights to things with respect to other people (rights in thing, not the thing) A: real property land, tangible property B: personal property chattels C: Professor Friedman 1) property is scarce if too much nobody wants it. 2) something law allows to be exchanged on the market. Theories of property: labor (reward work), social (societys interest), personhood, 1st occupancy

Rights of Possessors ways to acquire property A. Acquisition by Capture 1. Physical occupancy required to obtain property in wild animals (Pierson v. Post) a) Mortal wounding so capture is imminent, ensnarement b) Pursuit does not constitute possession must be actual corporal possession 2. Once animal returned to nature property rights no longer a) Wild animals are possession of next possessor once escape containment b) Domesticated animals are property of owner 3. First occupancy a) Subject is unowned b) Occupation is actual c) Occupation defines what reasonably can be owned d) Occupier claims no more than share (defined by c.) 4. Labor Theory property based on that which one has earned through work/labor B. Acquisition by Find (reward finder for bringing property to public attention) (Favorite v. Miller (statue) finder of lost property holds rights against all but true owner) jus tertii Armory v. Delamarie cant use as defense you dont own, so I get it Types of Found Property 1. Lost involuntary, unintentional parting w/o owner's knowledge or intent a) finder has rights superior to all but the true owner b) 2 requirements for finder to have possession i. physical control over goods ii. intent to have dominion over goods c) locus in quo place where property is found d) stolen = lost e) if agent of servant finds master gains possession 2. Mislaid intentional & voluntary parting w/ intent to maintain custody, but forgotten where located (Benjamin v. Linder Aviation - $$$ in airplane wing) a) owner intends to get property back b) owner of locus in quo has right against all but true owner c) if found on private property goes to owner locus in quo 3. Intentionally abandoned voluntary & intentional relinquish ownership a) owner not intend to reclaim property b) finder has property rights except if finder is employee of locus in quo 4. Treasure trove Coins, currency at common law goes to finder i. element of antiquity owner is dead or not found - belongs to finder not owner locus in quo - Trespass except where technical or trivial is sufficient to deprive finder of rights over the owner locus in quo. - Property found on land a) public land = finder has rights b) private land = owner locus in quo (finder entitled to finders fee?) - pawn shop may recover your TV from person who bought it & pawnshop must recover from him. Bailment possessory right by one over the goods of another. - bailee one in possession - bailor one who entrusts possession C: Acquisition by Discovery (Johnson v. M'Intosh Indian land) (first in time first in right) - aboriginal title only right to occupancy / not title, no compensation for taking, no transfer rights 1. Discovery through conquest & power, not need be by force, but moral & natural superiority. Requires physical control & intent to exercise dominion. II.

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D:

F:

2. Statute of limitations = finder may keep property after certain length of time. Statute of limitations not start until true owner knows / should know that has cause of action. Acquisition by Creation (personhood theory or labor theory) 1. Labor involved in creation provides property rights (quasi-property) 2. Nature of interest at issue Davis v. Davis (embryo case) a) prior agreements if K then K principles b) preferences of progenitors intention of the parties c) balancing interests discretion by courts right of man/women to be parent Acquisition by Gift voluntary transfer of property w/o any consideration or compensation 1: inter vivos ordinary transfer donor not responding to death gift is irrevocable once made and elements are satisfied. 2: causa mortis gift made in contemplation of imminent death i. gift revocable until time of death, & automatically revoked if donor escapes peril of death which prompted the gift ii. must be delivery iii. must be made while donor is alive *** overrides will b/c made b/4 will took effect A) elements of a valid gift a) intent donor must intend to give gift (donative intent) b) delivery evidence of intent (make best delivery possible) i. actual delivery of gift itself (physical transfer) ii. symbolic representative of gift; when actual gift cannot be delivered (stock certificate, deed, ) iii. constructive something that allows access to gift (map, key, lock #) iv. transfer to independent 3rd party for delivery qualifies (trustee of donee) ex] father give stock certificate to ex-wife to hold for child c) acceptance usually implied

III.

Rights, Powers, & Obligations of Possessors 1) Rights (rights against all who cannot prove better title than the possessor) (jus tertii no apply as defense b/c must win on strength of your title not weakness of others) a) Tabscott v. Cobbs when dispute over title, one in possession prevails. - b/c possession is a form of property & title. - one in possession has better title against all but actual titleholder - prior peaceable possessor has better title than subsequent peaceable possessor 2) Powers b) Porter v. Wertz cannot convey better title than what you have. except doctrine of estoppel ones words/actions give impression that have title to convey. A: Statutory Estoppel (UCC 2-403) owner entrusts possession to bona fide merchant dealing in those goods. Merchant has power to transfer all rights to bona fide buyer (buyer in good faith). (Lazarus) B: Equitable Estoppel owner is estopped by own acts from asserting title against good faith purchaser. (Good Will) 3) Obligations (Peet v. Roth Hotel) Bailment delivery of personal property from bailor to bailee w/ express or implied contract - bailee owes duty of care to bailor i. gratuitous bailment (benefit of bailor) slight duty of care / gross negl. ii. mutually beneficial ordinary duty of care / negligence iii. commercial bailment sole benefit of bailee extraordinary duty of care - @ common law high duty of due care for known object bailed - modern law how reasonably prudent person would treat the bailment *** if know / told of value or object then duty is increased 4) Limiting liability provision (Ellish v. Airport Parking) license bailor limits rights or waives right of recovery (claim check / car) - provision is void if bailor is unaware of it Adverse possession A: - consequence of time period running out on true owner to bring cause of action against a possessor of property. - If Statute of Limitations runs out b/4 owner brings cause of action = he is SOL.
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IV.

B:

C:

(good faith)

(?)

D:

E: F:

G:

H:

Theories for Adverse Possession 1) Reward reward the person in possession for using the property 2) Punish punish the true owner for not using the property for a purpose 3) Avoid lawsuits over who is owner of the land 4) Quiet Title place good title in known, using person to determine who has property Five criteria for adverse possession (AEOCH) 1. actual possessor in actual possession of property. (use as reasonable person would use) 2. open & notorious possession must be known / able to be known by true owner. 3. continuous possession throughout entire statutory period - consistent w/ reasonable use. - seasonal possession may be sufficient & w/ the nature of the land (Jarvis v. Gillespie). 4. exclusive must be excluding true owner from the land. 5. hostile / under a claim of right must be hostile to true owner's title. - possession w/o true owners consent (intent is necessary for hostility) - two theories reward the honest possessor v/s the intentional wrongdoer a) "Maine rule" minority / subjective know you are not owner of possessed land. - knowing, wrongful taking of anothers land. b) "Connecticut rule" majority / objective intent not matter. Mistake doesnt matter. Act of taking is sufficient. Tolling (p.185 188) where law will stops the clock to bring cause of action. - if disability is present when SOL begins will stop the clock. - if SOL accrues w/o disability then true owner will not be able to toll. i. minority (age) statute ii. insanity iii. in prison Tacking adding time of one possessor w/ another to satisfy SOL - must occur by mutual consent / devisee / written instrument. Privity a relationship b/w two that allows certain rights to occur - to tack subsequent possessor has permission to enter the land by the prior possessor. - also applies to true owners time for cause of action. Mistaken Boundary look to hostility Innocent Improver Doctrine (adjoining land owners) (@c.l. owner may tear down) may require true owner to pay for improvements or sell land to improver. look to intent, good faith, hardship of removing the improvement. honest mistake what do in equity to compensate both sides. (balance the equities) Color of Title - written instrument purports to convey title, but it is defective. - statutory period for adverse possession may be shortened. - if possessor enters under color of title describing larger tract of land than actually possesseswill gain adverse possession to whole amount described in instrument. Adverse Possession of Chattels - OKeefe case discovery rule clock begins to run when discovered or reasonably should have discovered w/ due diligence to recover & find. - demand & refusal rule starts when true owner asks for chattel & is refused. - NY no SOL on art / chattels discovery rule but no diligent effort to find required.

V.

Estates in Land & Future Interest - Present Interests & Future Interests Tenure where tenant holds land of a lord. Subinfeudation where tenants holds land in return for services. Escheat tenant dies w/o heir land falls back to lord. Grant made while living Devise made after death. Testate died w/ a will Intestate died w/o a will A: Present Interests (possessory) 1) Freehold estates possessor is seized of the land. a) fee simple absolute (& his heirs) (*no heirs until you die!) - possession w/o condition - inheritable - freely alienablemay transfer to others by gift or sale

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b)

2)

fee tail (& the heirs of his body) - w/o condition - inheritable - NOT freely alienable only give to heirs c) life estate (for life) (per autre vie for the life of another) - possession w/o condition - NOT inheritable - freely alienable d) fee simple determinable (defeasable fee) (automatically reverts back to O) ***so long as, while, during (time) - possession IS conditional - indefinitely inheritable - freely alienable e) fee simple on a condition subsequent (defeasable fee) (O must assert right) - same as above - ***on condition, but if (conditions) f) fee simple on an executory interest (Statute of Uses 1536) - depends on the executory interest created - 3rd party take possession if some event / thing happens Non-freehold estates possessor entitled to occupancy only. a) term for years (*** for_____years) b) tenancy at will (*** at will) c) periodic tenancy (*** month to month)

B:

Future Interests (merely interest postponed into the future) - may be in grantor or 3rd party In the Grantor In a 3rd Party 1) Reversion (vested nondefeasable) 1) Remainder 2) Possibility of Reverter (determinable) a: absolutely vested 3) Right of Entry (condition subsequent) b: vested subject to defeasance 2) Contingent Remainder 3) Executory Interest Present Interest Future Interest in the grantor FREEHOLD ESTATES none reversion reversion possibility of reverter right of entry (exec int. created) NON-FREEHOLD ESTATES Reversion Reversion Reversion

in the third party none remainder remainder / exec. interest none / exec interest none / Executory interest Exec. Int. after defeasibles

Fee Simple Absolute Fee Tail Life Estate Fee Simple Determinable Fee Simple on a Condition Subsequent Fee Simple on an Executory Interest

Term for years Tenancy at will Periodic tenancy

Reminder / Executory Interest Remainder / Executory Interest Remainder / Executory Interest

Remainders (follows non-defeasible interest / interests that expire) 1) Vested remainder (know/ ascertained person) a) absolutely vested (no condition) born, ascertained, & no condition needed to vest b) vested subject to open (partial divestment) - interest where person in existence & ascertained, but amount of estate / interest is decreased by entrance of other members of the class ex] children, nieces, nephews, c) vested subject to complete divestment (condition to keep)(condition needed after the fact) - ex] OA for liferemainder to B & his heirs, but if B doesnt reach 21 - remainder interest holder in existence & ascertained, no conditions precedent, but rights of possession on expiration of the prior interest is subject to termination b/c of existence of an executory interest, power of termination, or possibility of reverter. 2) Contingent remainder (condition to receive the interest, but not to keep) - pre-condition (look for rule against perpetuities) a) ascertained person subject to condition precedent (event occur b/4 possession) b) in favor of unborn person

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c)

in existing, but unascertained person

*** Doctrine of Destructibility of Contingent Remainders (post-1535) - each contingent remainder must vest at or before the termination of the preceding freehold estate. *** Rule in Shelleys Case (Grantee & Grantees heirs) - if, in single document, freehold estate is given to a person & a remainder (in fee simple or fee tail) is given to his heirs, the remainder becomes a remainder in the ancestor rather than in his heirs. - merger rule if life estate & fee interest conveyed in same interest, the smaller estate merges w/ the larger estate & person owns the larger interest. Ex) Oto A for life, remainder to As heirs Ex) OA for life, to B for life, remainder to the heirs of A (but, no merger b/c of B) *** Doctrine of Worthier Title (grantor & grantors heirs) - title by descent is worthier than one by grant or devise. 3) Executory Interests (follows interest that terminates / defeasible interests) - future interest in a 3rd party after preceding estate terminates or is nonfreehold estate. - not a remainder b/c follows non-freehold estate or defeasible fee. a) Shifting Executory Interest shifts from grantee to grantee ex) OA for life, upon As death to B, but if C marries D to D & his heirs - Ds interests shifts & divests Bs vested remainder subject to divestment b) Springing Executory Interest springs out of the grantor ex) Oto A upon her marriage - As interest springs from O (the grantor) & divests his interest - executory interests: - follow fee simples - occur with happening of an event - created in 3rd party - is a future interest - in someone other than grantor - or directly follows possession of grantor - divests the prior interest C: Rule against Perpetuities *** no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest [time of the grant]. ***modern wait & see - applies only to unvested interests @ time of grant: - contingent remainders - executory interest - vested remainder subject to open / partial defeasance - NOT any interest retained by grantor b/c are already vested. 1. Fertile Oxygenarian Rule any person still alive may bear children 2: Unborn Widow Rule widow may be born @ time of grant use existing wife. 3. Precocious toddler any person alive may bear children. 4. Gestation Period plus 9 months to beginning to account for pregnancy. Law of Waste designed to protect holders of future interests 1) voluntary waste present interest holder acts affirmatively which devalues. 2) permissive waste present interest holder fails to act which devalues. Concurrent Estates *** Estates granted to 2 or more persons w/ interest in the same property. *** Each has right in fee simple use, possession, all rights. Types of Concurrent Estates 1: Tenancy in Common (co-tenants) (modern law preference if not specified) - each co-tenant has undivided interest in the whole property. - Percentage - % of interest may be different - freely alienable - Devisable (may will away) - Descendible (to heirs testate v/s intestate)
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D:

VI.

severe: - partition (voluntarily / involuntarily) split w/ other to own your part alone - conveyance give to another - merger sell interest to another Joint Tenancy w/ Right of Survivorship (joint tenants) (common law form) - 2 or more joint tenants own 1,single, unified interest 2 own whole together - MUST HAVE 4 UNITIES: A: TIME acquire interest @ same time B: TITLE acquire interest through same instrument C: INTEREST each has identical % share of the estate D: POSSESSION right to possess the whole - NOT devisable (not will or give away) - NOT descendible (not pass to heirs if one dies the other gets the others interest) severe: - conveyance = to 3rd party = becomes tenancy in common - mortgage: (title theory = severance) (lien theory = no severance only creates lien) (Intermediate Ohio = not conveyance until default on loan.) - lease (yes & no) (Tenhet v. Boswell c.l. intent is JTw/RofS severe must look the same & have same intent as creation.) - partition separate in to own own part Tenancy by the Entirety (through marriage only) - like joint tenancy PLUS UNITY OF PERSON (time, title, interest, possession) severe: *** must be voluntary & w/ consensus *** cant be unilateral a) divorce but not separation (Porter v. Porter D, but didnt do anything about it.) b) death c) mutual consent Tenancy in Coparcenary 5: Tenancy in Partnership

2:

3:

4:

Rights & Duties of Co-tenants - Ouster when one co-tenant asserts right of exclusive possession against the other. (make known not welcome) - other co-tenant cant enjoy his/her right to possession Rules: 1) Rent: co-tenant out of possession entitled to share fair rental value of the property. (Statute of Anne cotenant liable to account to other for rent & profits in excess of fair share.) Ex] rent garage for $50, other entitled to $25 (proportionate share) 2) Improvements: not charged against co-tenant out of possession unless the improvement is necessary (to prevent waste) or enhances value of property. - & improver has right of return for the investment of improving. - no obligation to improve, but obligation to maintain & prevent waste. if tenant in possession reduces the value of the property must account to other 3) types of action: a: contribution (for expenses) 1st to blink pay now, reimbursed b: partition seek to severe by selling property c: accounting for rent obligation 4) fiduciary duty certain legal obligations NO in majority - must deal w/ honesty & clean hands fair - deal w/ better than anyone else reserved for attny, doctors. Bank Accounts (JTw/ROS) usually governed by statute. 1) Contract Theory created under terms of contract intent of party to give amount to other 2) Gift Theory harder for survivor to win must prove intent, delivery, acceptance VII. Property & CoHabitants (jure vxoris law of your wife) - @ Common Law wife is disabled & property go to husband - wife could own property but could not manage / handle the affairs A: Dower to the wife/widow life estate in 1/3 of husbands legal estates.

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- inchoate during the marriage. - consummate if the wife survived her husband. B: Curtesy to the husband / widower - life estate in all of wifes real property (tenancy by marital right). - initiate husbands interest during wifes life w/ a child - child must survive birth (child cried to 4 walls.) - consummate if husband survives wife all her property for life solely seized - @ common law - husband had right to control & manage the disposition of the property. - husband entitled to rents & profits from the property. - husbands creditors could reach into wifes property to collect debts. - @ modern law - if die intestate surviving spouse a fixed % of deceased spouses property - if die testate most states provide forced or elective share. A: Married Womens Property Act - abolished jure vxoris wife now has control / management power - interest of spouse in tenancy by the entireties. - freed wifes property from husbands creditors. B: Community Property (8 jurisdictions) - everything acquired by either party during the marriage belongs to the community. Except: - gifts & inheritance - & things they owned b/4 marriage. - husband & wife are equal partners with respect to community property. Except: - husband usually has management & control. Creditors rules vary may or may not reach the others property. - if credit against community property may reach into the whole of community property to recover the community debt. C: Uniform Marital Property Act addresses property concerns during marriage. 1: ownership vested ownership rights in property acquired during marriage. 2: Management & Control equal unless agree to divide. 3: may have marital property agreements prenuptial / antinuptual. (freedom to K) 4: cease to apply upon dissolution of the marriage. 5: creditors only reach what able to reach had there been no marriage. - Nonvested pension rights usually yes are marital property - Education may be marital property look at contributions from both to expenses - Unmarried cohabitants can be through contract (not through marital right) VII. Leasehold Estates 1) Term of Years - (@ CL more conveyance of property) 2) Periodic Tenancy - (modern more K type conveyance) 3) Tenancy at Will 4) Tenancy at Sufferance A. Lease contract for a conveyance of real property 1) Statute of Frauds leases for 1 year or more must be in writing. - oral leases over 1 year governed under Statute of Frauds a) part performance by tenant may take part of agreement out of jurisdiction of the Statute i. improvements to property, payment of rent ii. look to tenant's actions with respect to intent 1. Requirements of a lease under Statute of Frauds a) must identify landlord & tenant (parties to the lease) b) description of premises to be leased c) amount of rent & when rent is due d) term of the lease (time period) e) SIGNATURES of the lessee & the lessor 2: When Problems Arise w/ the lease a) landlord may seek injunctive relief = eviction, rent payment, damages b) tenants defenses are limited to unconscionability & waiver of the lease B. Types of Tenancies (nonfreehold, possessory interest)

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1) Term of Years a) specific beginning and ending period lease for a specific or computable period b) length is irrelevant just must be specific c) termination provisions are included in the lease d) tenancy is alienable, devisable, and descendable e) Statute of Frauds in effect 2) Periodic Tenancy a) continues period to period automatically, unless either party give proper notice b) termination notice determined by period of lease - @ CL required six months notice for leases of 1 year or more - leases less than 1 year = the period of the lease *** must be received no later than the last day of period *** no notice = automatic renewal *** death = notice (but, may be required to fulfill period) ex] month to month = need 1 month to terminate 3) Tenancy at Will a) potentially infinite duration, continuing at the will of the parties & both may terminable b) no notice to terminate required c) death of either party terminates d) once terms are defined, ceases to be a tenancy at will ex] child move back home w/ parents no agreement, no terms just living there exception emblements farmer w/ crops in ground given time to harvest 4) Tenancy at Sufferance (not true tenancy at all) (HOLDOVER) a) lessor remains on property after previous legal agreement ends b) entered rightfully into possession but refuses to leave c) landlord may treat as: i. trespasser and initiate action to evict ii. periodic tenancy terms determined by prior agreement *** if landlord accepts rent = he has elected a new term C. Delivery of Possession landlord required to deliver legal right to possession at beginning of lease term 1. No transfer of interest from tenant to tenant interest vests back to landlord at end of lease landlord may take action against holdover & deliver possession - @ C.L after delivery = landlord no responsibility to protect tenants possession 2. Rules for delivering possession a) American Rule (minority) tenant's responsibility to take actual possession of property - landlord only give right to possession b) English Rule (majority rule) landlord's obligation for actual possession of property - if landlord fails to do so, tenant has grounds for breach - duty to provide possession through implied covenant - landlord in better position to rid current holdover than tenant b/c already relationship - contractual issue = breach of the contract is @ heart of matter USE restrictions placed upon tenant @ CL & now LL permited to place reasonable restrictions on use *** general rule = must be reasonable under circumstances - tenant must be permited to enjoy the premises for purpose leased for 1: Illegality - If landlord knows property will be used for illegal purposes lease is void - If actual act of leasing is illegal lease is void (illegal contract = no contract) - If use of land becomes illegal lease is voidable 1) Restrictive if use that becomes illegal is only one provided for tenant may terminate 2) Permissive if T may use for more than the one purpose may not terminate 2: Commercial Frustration Tprevented from using for intended use, but still use for other purpose *** look to lease to see if restrictive or permissive *** a) Landlord must have known of the intended use b) must be total or near total frustration c) frustration must not have been reasonably forseeable

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Impossibility performance of either party to contract becomes illegal, difficult, expensive, dangerous, or literally impossible then may terminate / void the lease 4: Interference w/ tenants use & Warrantees - @ common law caveat emptor buyer beware as, is - L.L. no duty to warrant lands fitness for any purpose responsibility is on tenant (Anderson v. Kirkpatrick drive-in movie) - no implied warrantee of fitness or know, latent defect - even if latent defect T should have known what using property for. Exception: a) residential lease short term, furnished, for immediate occupancy ex] hotel room / inn keepers b) must disclose known latent defects 5: Doctrine of Independent Lease Convenants (@ common law) 2 independent promises in lease - failure to perform by one does not excuse the other from performing under the lease. a) promise to convey possession & use b) promise to pay rent under terms - other promises are independent too so T cant w/hold rent for breach of promises. Exception - Covenant of Quiet Enjoyment T has right that neither LL nor his agent will prevent enjoyment by T. - if breached contractual obligations relieved, but cant breach by 3rd parties 6: Implied Warrantee of Habitability (modern law) (residential leases) - LL guarantees the premises is habitable condition for use by tenant safe, heat, water, light, etc - in some cases may claim constructive eviction as LL had duty of IW of H ex] (Pugh v. Holmes PA case 1979 courts abolished caveat emptor & replaced w/ IWH *** also may have statutes in effect to govern habitability / housing codes 7: Commercial Leases implied warrantee of fitness for particular purpose (medical office case) - K clause for sublease LL may say yes or no but, ct want to promote use of land / alienation -@ common law LL say no for whatever reason. - now must be reasonable commercial reason 7: Remedies a) Constructive Eviction (b/4 implied warrantee of habitability) - T uses as defense against LL when sued for rent, damages, etc 1) T must actually leave the premises 2) expressed / implied duty by LL & didnt perform or interferes w/ use and enjoyment of T 3) T must give proper notice & opportunity to fix / remedy problem - could be partially or actively evicted if LL shuts off air, water, heat, electric *** if dont leave must be extreme, immoral activity occurring b) Rescission void the contract or lease K g) Rent withholding - escrow c) Compensatory damages K h) illegality violates housing code d) Reformation modify the lease w/ new terms K e) Repair & deduct T repairs the problem & deducts the amount from the rent - T must first give notice & opportunity to fix (IW of H) f) Abatement (IW of H) 1: Percentage Reduction (demenution) - multiply rent by % of the use lost b/c of the breach / problem - reduce the promised rent / rent agreed to by the % of breach 2: Restatement approach - abatement to amount in proportion of fair retail value b/4 & after breach i. rent agreed to minus fair market value w/ breach ii. fair rental value w/o breach minus fair rental value w/ breach Liability in Tort - @ common law LL has no liability to T only deliver possession - liability goes w/ possession - only duty for reasonable care = inform of known latent defects or those that should have been known w/ reasonable efforts to inspect, etc except: - if LL has actual knowledge of latent defect & fails to tell T - *** as soon as tell or warn of defect or becomes patent = liability is extinguished - @ CL & now LL is responsible for common areas & negligent repairs - now LL responsible to T for unreasonable harm if T doesnt know of condition or if LL knows & not tell 3:

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Retaliatory Eviction - @ common law LL recover for any reason or no reason, any time, at end of lease or w/ notice except: retaliatory eviction cases - proof shifts from T to LL to prove that didnt evict for retaliatory reasons - T must do something to shift the proof to LL (courts reluctant to force LL into zero-profit business) LL might: evict, raise rent, shut off utilities, not make repairs LL would have prove other motive financially oppressed, unjust, impossible unless the court want to punish LL punitively Transfer of Leaseholds - privity of contract - privity of estate look @ the transfer to determine if it is an assignment or sublease a) assignment transfer all legal rights to property to another (T2) - T1 reserves no right to re-enter possession, no rights to estate, & no interest left over - T2 buys right to possession of estate - & get privity of K if assumes all of lease from T1 - privity of estate b/w transferee & LL - privity of contract b/w LL & T1 b) sublease merely sublet the possession to another w/ right by T1 to reenter possession (REVERSION) - T1 still seized of the estate just letting T2 have part of the estate - no privity of estate or contract b/w LL & T2 b/c T1 has have the only privity ex] (First American National Bank v. Chicken Systems of America) Termination of Leaseholds 1: expire via terms of lease, proper notice is given - once expire no additional obligations b/w LL & T 2: Abandonment - if T is gone & LL cant find or if T is known, but LL has no way to collect / defaults - what can LL do: i. do nothing & swallow loss & bring action later - if contracts addresses may right provision into contract to provide remedy for LL - if contract doesnt address: - @ common law abandonment treated by: 1) do nothing - assume lease still in effect & sue for rent as rent comes due 2) wait for period of term and sue for all of back rent (be careful of statute of limitations.) 3) treat abandonment as surrender reconvey possession back LL (merge present estate w/ LLs reversion) - if accept surrender obligation for rent from T stops *** LL prefers to sue for rent - @ modern law courts treat lease as K and always imply duty to contract in good faith *** courts impose duty to mitigate damages - LL wants to hold original T liable when mitigate damages LL acts as agent of T (one in present possession) keeps LL o.k. by not accepting the surrender of T LL makes it clear that is mitigating on behalf of T to sublet - acceleration LL may see that abandon whole lease so sue for entire amount now (MUST BE IN K) - waste issues affirmative, passive, ameliorative (improves property) LLs duty to reasonably mitigate 1) no duty to mitigate better or worse than rest of property in your possession ex] apt building w/ 100 units 5 vacancies 1 under mitigation - must you push the 1 over the 5? no no duty to treat better or worse 2) advertising / process by which attempt to mitigate - must be in line w/ how other advertising is done 3) LL doesnt have to accept terms worse / less than original agreement w/ T ex] cut off foot to lease if mkt goes up then only have to rent in line w/ what other units are renting

10

Property I Outline Fall 2000