P-Dizzle

Front 1

Acquisition by Discovery:
Cases

Back 1

Johnson v. M'Intosh
Rule:
Discovery grants exclusive title
Society has the right to prescribe the rules by which property can be acquired

Front 2

Acquisition By Discovery:

Based in what rule?

Back 2

First In Time:
Being there first justifies ownership

Front 3

Acquisition By Conquest

Back 3

taking of territories through force
illegal by international law

Front 4

Acquisition By Capture
General Rule

Back 4

First in time

Front 5

Acquisition bu Capture
Cases

Back 5

Pierson v. Post
(fox hunt- capture rule)
Ghen v. Rich
(whale- construct. poss)
Keeble v. Hickeringill
(no malicious prevention)
Popov
(Greys Rule- must control)

Front 6

Pierson v. Post

Back 6

Fox Hunting
RULE
Whoever is the first to capture resources is entitled to them

Title to a wild animal is acquired when a hunter apprehends the beast through actual possession, pursuit alone vests no property or right in the huntsman

Front 7

Rationale Soli-

Back 7

• An owner of land has constructive (pretending a state of affairs that actually exists when actually it does not) possession of wild animals on that land until the animals are taken off.

Front 8

Ferae Naturae

Back 8

wild animal

Front 9

Ghen v. Rich

Back 9

(lance-bombing)
• If the fisherman does all possible to make the whale his own, then it is sufficient to establish constructive property rights within the whale.
• Title to a wild animal is acquired when a hunter apprehends the beast in according to Trade Usage
• Hunting has been modified here to fit efficiency

Front 10

Keeble v. Hickeringill

Back 10

• A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade

Front 11

Popov Case

Back 11

(baseball case)
• Grays Rule:
Actor must retain control of the ball after incidental contact with people or things to establish possession

Front 12

Rule of Capture:
Oil & Gas

Back 12

• HAMMONDS RULE:
• The resources were minerals ferae naturae.
• They belong to the owner of the land as long as they are under the land.
• As soon as they escape to another’s land and are captured there, you lose your title to them and the capturer gets the title to what he captured.

Front 13

Acquisition by Creation
Rule

Back 13

• The purpose of recognizing property by creation is to reward labor.
•However, problems arise in defining “creation”
•EX: ones labor mixed with goods or labor of another

Front 14

B. LOCKE’S LABOR THEORY:

Back 14

• When a man changes land through his labor, that land is his

Front 15

C. ACQUISITION BY ACCESSION:

Back 15

•When one person adds to the property of another by labor alone, or by labor and the addition of new material
•LABOR ADDED:
• When labor is added, the final product is usually awarded to the owner unless its value has sufficiently increased so as to make it unfair to award it to the original owner. Usually the improver must have acted in good faith.

•LABOR AND MATERIAL ADDED:
•The final product is generally awarded to the owner of the principal material.

Front 16

Acquisition by Accession:
Cases

Back 16

Haslem v. Lockwood
Manure Case
• If a party finds property comparatively worthless…and greatly increases its value by his labor and expense, he is entitled to its value

Front 17

Intellectual Property:
Rule

Back 17

• RULE: FIRST IN TIME
• This includes copyrights, patents, trademarks, and property in a persona.
• The common law allows some limited copying and imitation, with some exceptions to avoid monopolies and to encourage competition

Front 18

Intellectual Property:
Cases

Back 18

International News
(Stealing News)
Cheney Brothers
(fabric copyright)
Diamond v. Chakrabarty
(can't patent a living thing)
Smith v. Chanel
(can't patent scent)
Falwell v. Flint
(can't patent yourself)
MGM v. Grokster
Inducement Rule

Front 19

International News

Back 19

stealing news
• Where a company has expended resources in creating news and information, the creator can exclude others from copying it until its commercial value until its commercial value as news has passed away

Front 20

Trademark:

Back 20

• Protects words and symbols indicating the source of the product it tells the consumer that they can expect the same quality every time you buy it.

Front 21

Copyright:

Back 21

• Protects the expression of an original idea in a tangible medium.
• does not extend to an idea, only the physical expression of that idea.
• Can be infringed showing:
• -An admission
• Proof of access to the work
• Substantial similarity.

Front 22

Cheney Brothers

Back 22

(fabric copyright)
•No common law copyright
•If you don’t copyright it you can’t bring a claim of infringement

Front 23

Diamond v. Chakrabarty

Back 23

• Can’t patent a living thing because it would be dangerous to let people exploit nature
•2 Key terms in the patent statute
i. Manufacture
ii. Composition of Matter

Front 24

Smith v. Chanel

Back 24

• Cant patent a scent

Front 25

Falwell v. Flint

Back 25

•Intellectual property rights are not free- they limit future creators and the public at large

Front 26

MGM v. Grokster

Back 26

• Inducement Rule:
• One who distributes a device with the objective of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties

Front 27

RIGHTS IN BODY PRODUCTS

Back 27

•The main question is not whether body products are property but whether they should be saleable.

Moore v. Regents

Front 28

Moore v. Regents

Back 28

•A doctor has a duty to disclose the extent of his research and economic interest in a patient’s body parts. Human body parts are not property such that they may be converted.
•Property:
•Must show dominion, control, disposition
•Bundle of Rights:
•Right to use, possess, transfer,exclude or sell
•The Right to Exclude:
Every person’s right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person

Front 29

Jacque v. Steinberg

Back 29

• Punitive damages may be imposed for intentional trespass to property

Front 30

State v. Shack

Back 30

•Property rights may not be exercised so as to danger the well being of other

Front 31

ACQUISITION BY FIND:
Rule

Back 31

A. GENERAL RULE:
• A possessor prevails against all but the true owner, and a prior possessor prevails against a subsequent possessor.

Front 32

ACQUISITION BY FIND
POSSESSION:

Back 32

• A finder must acquire physical control and have intent to assume dominion over the object. Constructive possession also entitles a person to the benefit of the first in time rule.

Front 33

ACQUISITION BY FIND
Cases

Back 33

Armory v. DelaMirie
(chimney sweep finds jewel, appraiser takes it)

Front 34

Trover:

Back 34

A common law action for money damages resulting from Defendants conversion to his own use of chattel owned or possessed by the plaintiff
DAMAGES:
Value of Chattel at time of conversion

Front 35

Bailment:

Back 35

Rightful possession of goods by a person (bailee) who is not the owner

Front 36

• Haslem v. Lockwood

Back 36

(Manure case)
If a party finds property comparatively worthless…and greatly increases its value by his labor and expense, he is entitled to its value

Front 37

Real Property:

Back 37

Real property is that sort of property for which a “real action” as distinct from a “personal action” could be brought
Real Action: get the “thing” back (specific performance)
Personal Action: Only get the value of the goods

Front 38

FINDER V. OWNER OF PREMISES

OBJECT FOUND IN PRIVATE HOME

Back 38

(i) RULE:
Objects found in someone’s home or other very private place are usually awarded to the owner of the premises.
CASE
Hannah v. Peel
(soldier finds gem in window)
An owner owns everything attached to, or under, the land but not necessarily object lying on the surface of the land, even though the objects are not possessed by someone else.

Front 39

FINDER V. OWNER OF PREMISES

OBJECT FOUND IN PUBLIC PLACE

Back 39

(i) Determined by deciding whether the object was
1.MISLAID
a.Intentionally placed somewhere and then forgotten
i.RULE: GOES TO THE OWNER OF THE PREMISES WHO HAS A DUTY TO USE REASONABLE CARE TO SAFE KEEP THE PROPERTY UNTIL OWNER RETURNS FOR IT
CASE
McAvoy v. Medina
(barbershop wallet on table)
A finder acquires no rights in mislaid property
2. LOST
a.Accidentally dropped by the owner
i.RULE: FINDER OF LOST PROPERTY MUST TRY TO FIND THE OWNER AND HAS RIGHTS TO IT IF THE OWNER IS NEVER

CASE
Bridges v. Hawksworth ( money on floor)

Front 40

OBJECT FOUND IN PUBLIC PLACE

MISLAID

Back 40

Intentionally placed somewhere and then forgotten
i.RULE:
GOES TO THE OWNER OF THE PREMISES WHO HAS A DUTY TO USE REASONABLE CARE TO SAFE KEEP THE PROPERTY UNTIL OWNER RETURNS FOR IT
McAvoy v. Medina
(barbershop wallet on table)

A finder acquires no rights in mislaid property

Front 41

McAvoy v. Medina

Back 41

(barbershop wallet on table)

A finder acquires no rights in mislaid property

Front 42

Hannah v. Peel

Back 42

(soldier finds gem in window)

An owner owns everything attached to, or under, the land but not necessarily object lying on the surface of the land, even though the objects are not possessed by someone else.

Front 43

OBJECT FOUND IN PUBLIC PLACE
LOST

Back 43

a. Accidentally dropped by the owner
i. RULE: FINDER OF LOST PROPERTY MUST TRY TO FIND THE OWNER AND HAS RIGHTS TO IT IF THE OWNER IS NEVER

Bridges v. Hawksworth
( money on floor)

Front 44

Bridges v. Hawksworth

Back 44

( money on floor)

FINDER OF LOST PROPERTY MUST TRY TO FIND THE OWNER AND HAS RIGHTS TO IT IF THE OWNER IS NEVER

Front 45

ABANDONED PROPERTY

Back 45

Property intentionally and voluntarily relinquished with no intent to reclaim

Front 46

ACQUISITION BY ADVERSE POSSESSION

ELEMENTS

Back 46

ECHOA

Exclusive
Continuous
Hostile
Open
Actual

Front 47

ACQUISITION BY ADVERSE POSSESSION

Cases

Back 47

Waling v. Pryzbalo
VanValkynburgh v. Lutz
Manillo v. Gorski
Amko v. Wellborn
Howard v. Kunto

Front 48

ACQUISITION BY ADVERSE POSSESSION

POSSESSORS RIGHTS BEFORE ACQUIRING TITLE

Back 48

Possessor has rights to property over all but the rightful owner, even before actually establishing valid title through adverse possession

Front 49

ACQUISITION BY ADVERSE POSSESSION

ADVERSE AND UNDER A CLAIM OF RIGHT

Back 49

• OBJECTIVE TEST
• SUBJECTIVE TEST
• CLAIM OF TITLE
• COLOR OF TITLE
CT DOCTRINE
MAINE DOCTRINE

Front 50

COLOR OF TITLE

Back 50

• A claim founded on a written instrument (deed or will) or a judgment or decree that is for some reason defective or invalid
i. ( as when the granator does not own the land conveyed by deed or is incompetent to convey, or the deed improperly executed)

Howard v. Kunto

Front 51

CT DOCTRINE

Back 51

• RULE: possession need not be knowingly/ intentionally hostile but it must be notorious and open to give the true owner actual or constructive notice
• Manillo v. Gorski (accidentally made porch 15 in. on neighbors land)

Front 52

MAINE DOCTRINE

Back 52

• RULE: Possession cannot be based on mistake, there has to be hostile intent
• Must show that the adverse possessor wouldn’t have erected the fence etc. if they had known they were not on their own property

Front 53

iii. AGREED BOUNDARIES

Back 53

• IF THERE IS UNCERTAINTY BETWEEN NEIGHBORS AS TO THE TRUE BOUNDARY LINE, AN ORAL AGREEMENT TO SETTLE THE MATTER IS ENFORCEABLE IF THE NEIGHBORS SUBSEQUENTLY ACCEPT THE LINE FOR A LONG PERIOD OF TIME.

Front 54

iv. ACQUIESENCE

Back 54

• LONG ACQUIESCENCE- PERHAPS FOR A PERIOD SHORTER THAN THE SOL- IS EVIDENCE OF AN AGREEMENT BETWEEN THE PARTIES FIXING THE BOUDARY LINE

Front 55

v. ESTOPPLE

Back 55

• When 1 neighbor makes representations about, or engages in conduct that implies, the location of a common boundary and the other one then changes their position in reliance on the representation or conduct.
• THE FIRST NEIGHBOR IS THEN ESTOPPED FROM DENYING THE VALIDITY OF HIS STATEMENTS OR ACTS.
(i) Estoppel has been applied when one neighbor remains silent in the face of expenditures by another that suggests the latters notion of the boundary's location.

Front 56

Innocent Improvers

Modern Law

Back 56

• The modern law is to ease the plight of innocent improvers by forcing a conveyance at market value of land from the owner to the improver

Amko v. Wellborn

Front 57

Amko v. Wellborn

Back 57

2 prong test
1. Plaintiff has to show it would suffer irreparable harm if removal were denied.
2. If irreparable harm, still a balancing test, compares hardship to plaintiff if no removal to hardship to defendant if removal is granted.

Front 58

CONTINUOUS UNINTERRUPTED POSSESSION

SEASONAL USE

Back 58

• RULE: Continuous seasonal occupancy by successive owners established adverse possession

Howard v. Kunto
(summer homes messed up deeds)

Front 59

TACKING

Back 59

• Tying your predecessors occupancy to your own through privity
• The deed links the possession of successive occupants and furnishes the privity of the estate.

Front 60

PRIVITY

Back 60

i. the connection or relationship between two parties each having a legally recognized interest in the subject matter; ie: mutuality of interest

ii. Privity applys to color of title, there has to be a reasonable connection, which can be established by the transferors of the color of title to establish privity.

Front 61

Adverse Possession

GOVERNMENT LAND

Back 61

• You cannot adversely possess government land

Front 62

Adverse Possession

Diabilities

Back 62

• Adverse possession statutes are really limitation statutes, saying you have X years to establish your claim and the owners have that time to come back.

• If the record owner is disabled there are exceptions
i. Minor
ii. Unsound mind
iii. Imprisioned

• They can bring action after the SOL runs, after the disibility is removed.

• Disabilities cannot be tacked.

Focus on when the adverse possession begins and the state of the record holder at that time. You give the extension then

Front 63

Adverse Possession

Minerals

Back 63

Adverse possession of surface prior to division of mineral rights = adverse possession of surface and mineral rights

POST severance of mineral rights= only adverse possession of surface, must start to extract minerals to begin adverse possession of severed mineral rights

Front 64

ADVERSE POSSESSION

CHATTELS

Back 64

• A person can adversely possess chattel, the elements are the same as to land with a shorter SOL
When deciding whether possession is open and notorious:
•NY RULE
•DUE DILIGENCE RULE:

Front 65

ADVERSE POSSESSION CHATTELS

NY RULE

Back 65

i. SOL does not begin to toll until the owner knows who has the goods
ii. The owner makes a demand for return which is rejected.

Front 66

ADVERSE POSSESSION CHATTELS

DUE DILIGENCE RULE:

Back 66

i. SOL does not begin to toll as long as the owner is using due diligence in looking for them.
ii. SOL begins to toll when the owner first knows or reasonably should know through the exercise of due diligence where the stolen goods are/
• Okeefe v. Snyder

Front 67

Okeefe v. Snyder

Back 67

ADVERSE POSSESSION CHATTELS

DUE DILIGENCE RULE:i.

SOL does not begin to toll as long as the owner is using due diligence in looking for them.
ii. SOL begins to toll when the owner first knows or reasonably should know through the exercise of due diligence where the stolen goods are/

Front 68

Voidable title:

Back 68

1. Title which remains valid until the true owner asserts ownership.
2. A person with a voidable title has power to transfer a good title to a good faith purchaser for value in certain circumstances

Front 69

ACQUISITION BY GIFT

Elements

Back 69

A. Requirements for Gifts
•Manifested intention to make unconditional and irrevocable
•Delivery
•Acceptance

Front 70

ACQUISITION BY GIFT
Delivery

Back 70

• If it’s a small chattel you must physically hand it over
• If too big to physically hand over, a constructive delivery or symbolic is required-
i. Constructive
• handing over a key or object that will open up access to the subject matter of the gift.
ii. Symbolic Delivery:
• Handing over a written instrument declaring a gift of the subject matter
• Generally not allowed

Cases
Newman v. Bost
life insurance inside furniture not a symbolic delivery- only meant to have furniture

Front 71

ACQUISITION BY GIFT
Constructive Delivery

Back 71

• handing over a key or object that will open up access to the subject matter of the gift.

Front 72

ACQUISITION BY GIFT

Symbolic Delivery

Back 72

• Handing over a written instrument declaring a gift of the subject matter
• Generally not allowed

Newman v. Bost
life insurance inside furniture not a symbolic delivery- only meant to have furniture

Front 73

Newman v. Bost

Back 73

life insurance inside furniture not a symbolic delivery- only meant to have furniture

Front 74

Livery of Seisen

Back 74

• Acting out a ritual to signify that title or "seisen" was being transferred.
• Generally old landowner would go on land with transferee and give a clod of dirt or stalks of wheat grown on the land
• Ended in 1677 when deeds became compulsory

Front 75

Causa Mortis

Back 75

• Strict statute of wills that sets requirements
• 2 disinterested witnesses
• Executed and signed in the presence of the witnesses
• Witnesses execute an affidavit saying they observed the testatrix writing the will

Front 76

SYSTEM OF ESTATES

Hierarchy

Back 76

1. Fee Simple Absolute
2. Fee simple divisible
3. Fee tail
4. Life estate
5. Leasehold

Front 77

Fee Simple Absolute

Back 77

• largest estate known to common law only way to lose it is default on mortage, default on taxes, or eminent domain

As close to absolute property right as law recognizes

Front 78

Fee simple divisible

Back 78

•Gift of real estate with strings attached and Violition of condition of grant retracts the gift

•Giving land to john smith but if alcoholic beverages are ever sold then it will go to mary brown

Front 79

Fee tail

Back 79

• Vanished in all but 4 states MA ME DE RI
• Property can only go to your heirs of your body
• Expires only when all of the decendants of the original owners were dead
• When that happens land reverts to the grantors heirs
• Your own issue excluding collaterals
• Idea is to keep it in the family

Front 80

Life estate

Back 80

• Only own it until you dies
A. Common Law:
• Life estate presumed unless the intent to pass a fee simple was clearly expressed in the instrument

B. Modern Rule:
• Reversed common law rule and said it is assumed to be a fee simple unless there is intent to pass a "lesser estate" shall appear by express terms
•CASES
White v.Brown
Objections against restrictions on alienation


i. Value on life estate use life expectancy table then divide the remainder to beneficiaries

Front 81

Leasehold

Back 81

• Tenant with no claim of title but property right to remain in possession

Front 82

Objections against restrictions on alienation

Back 82

1. Property becomes of limited use
2. Perputates the concentration of land and thus wealth b/c people cant sell land and use that money
3.Discourages improvement on land or mortgage
4.Hardship on creditors

Front 83

Waste:

Back 83

• RULE: courts do have jurisdiction to order the sale of land for the prevention of waste if the facts so merit, the court can only order a sale if it is in the best interest of all the parties.
• Applies when the interest of the life tenant and the remaindermen conflict
• A should not be able to use the property in a manner that interferes with the expectations of B
• AFFIRMATIVE WASTE:
•Arising from voluntary acts
i. Life tenant tempted to exploit property value to the max but this leads to the property being worth less in the future when the remaindermen get it
•PERMISSIVE WASTE:
•Arising from failure to act
i. Prohibits life tenant from neglecting repairs

Front 84

Baker v. Weedon

Back 84

WASTE RULE: courts do have jurisdiction to order the sale of land for the prevention of waste if the facts so merit, the court can only order a sale if it is in the best interest of all the parties.

Front 85

QUITCLAIM:

Back 85

• Legally giving up any right in the property

Front 86

LIFE ESTATES OF CHATEL

Back 86

• You can have a life estate in chattel but you may have to
• Post a bond for its value
• You are treated as a trustee with a fiduciary duty to the remaindermen for the chattel

Front 87

. TRUST

Back 87

• More flexible and desirable property arrangement than an estate
• Trustee owns legal title- power to control it but holds it in trust for benefit of trustees in fiduciary duty
• Trustees have equitable title
• Trustee can also be beneficiary

Front 88

DEFEASIBLE ESTATES

Back 88

1. Fee simple determinable

2. Fee simple subsequent to a condition

B. COMMON LAW:
• You cannot transfer reverter or right of entry, during life
• Some states say that an Attempt to transfer intervivos destroys the right of entry

C. MODERN LAW:
• You can transfer them because they are things

Front 89

Fee simple determinable

Back 89

• Fee simple so limited that it will end automatically
i. Followed by a possibility of reverter

CASES
Marenholz v. County Board (limitation for school use is a limitation)

Front 90

Fee simple subsequent to a condition

Back 90

Does not automatically end, but may be cut short or terminated at the transferors election

Front 91

Habendum Clause

Back 91

• Portion of the contract which describes the restriction

Front 92

• Eminent domain

Back 92

• The proceeds from an eminent domain proceeding are to be divided between present and future interests
• CONDEMNOR AS PRESENT INTEREST
• Palm Springs v. Living Desert Reserve

Front 93

Defeasible Life Estates upon Marriage

Back 93

 Provision will be VOID if its purpose is to coerce abstention from marriage
• "to A for life, but if A marries, then to B"
 Will be UPHELD if its purpose is to provide support until marriage, without any desire to hinder marriage
• "to A for life so long as A remains unmarried"

Front 94

FUTURE INTERESTS

Back 94

A. Interests retained by the transferor, known as:
• Reversion
• Possibility of Reverter
• Right of Entry (also known as power of termination)

B. Interests created in a transferee, known as:
• Vested Remainder
• Contingent Remainder
• Executory Interest


Although a future interest doesn't entitled its owner to present possession, it is a presently existing interest that may become possessory in the future

Front 95

Interests retained by the transferor

Back 95

• Reversion
• Possibility of Reverter
• Right of Entry

Front 96

Interests created in a transferee

Back 96

• Vested Remainder
• Contingent Remainder
• Executory Interest

Front 97

O conveys blackacre to A for life.

Back 97

• O has a reversion in fee simple that is certain to become posessory
• At A's death blackacre reverts back to O or O's sucecssors in interest

Front 98

REVERSION INTEREST

Back 98

• The interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when the lesser estate expires.
• Because reversions result from the hierarchy of estates they are thought of as a remnant of an estate which has not entirely passed away from the transferror.

• At common law a reversion is transferrable during life and descendible and divisible at death. It remains so today

Front 99

conveys Blackacre to A for life, then to B and her heirs if B survives A"

Back 99

• O has reversion interest in fee simple that is not certain to become possessory
• If B dies before A, Blackacre reverts back to O at A's death
• If B survives A, O's reversion is divested on A's death and will never become possessory

Front 100

1. O owns fee simple. In which cases is there a reversion?

a."to A for life, then to B and her heirs"

b.to A for life then to b and the heirs of her body

c.To A for life, then to B and her heirs if b attains the age of 21 before A dies

Back 100

a."to A for life, then to B and her heirs"
iNo reversion- B has a vested remainder in fee simple

b.to A for life then to b and the heirs of her body
i. No B has a vested remainder in fee tail

c.To A for life, then to B and her heirs if b attains the age of 21 before A dies
i. O has a reversion interest until B turns 21, where B's contingent remainder is vested remainder in fee simple

Front 101

O conveys Blackacre "to A for life, then to B for life" O dies with a will devising all of O's property to C. Then A dies and B dies. Who owns blackacre?

Back 101

a. C owns Blackacre through reversion in Fee simple

Front 102

POSSIBILITY OF REVERTER

Back 102

• FOLLOWS A FEE SIMPLE DETERMINABLE
 Must have words denoting DURATION
• “until”
• “during”
• “so long as”
•

Front 103

WHAT INTEREST FOLLOWS A FEE SIMPLE DETERMINABLE

Back 103

POSSIBILITY OF REVERTER

Front 104

O conveys Blackacre “ to A and his heirs so long as liquor is not sold on the premises”

Back 104

A has a determinable fee;
O has a possibility of reverter

Front 105

RIGHT OF ENTRY

Back 105

• Follows a Fee Simple Subject to a Condition
 Words that establish a condition
• “but if”
• “provided, however”
• “on condition”
When an owner transfers an estate subject to condition subsequent and retains the power to cut short or terminate the estate.

Front 106

What Interest Follows a Fee Simple Subject to a Condition

Back 106

RIGHT OF ENTRY

Front 107

• O conveys Blackacre “ to RR Co., but if it fails to maintain an overpass, O has the right to reenter”

Back 107

RR CO has Fee simple subject to a condition precedent

O has right of re-entry

Front 108

FUTURE INTEREST IN TRANSFEREES

Back 108

There are 3 types of future interest in transferees:
A. Vested Remainder
B. Contingent Remainder
C. Executory Interest

Once created, a remainder or executory interest can be transferred back to the grantor, but the name originally given the interest does not change

Front 109

Vested Remainder

Back 109

a future interest in a transferee that is certain to become posessory upon the expiration of the prior estate created at the same time.

• Given to an ascertained person, and
• Not subject to a condition precedent
• other than the natural termination of the preceding estates
• Vested because all you have to do is wait


The law has a preference for vested remainder and, where an instrument is ambiguous, the court construes it in favor of a vested remainder.

Front 110

" to A for life, then to B and her heirs"

Back 110

• B has a vested remainder in fee simple.

Front 111

• Contingent remainder

Back 111

Permits the transferor to let future events determine who takes the property upon the death of the life tenant•

Future interest that waits until the termination of the preceding possessory estate, at which time the remainder moves into possession if it is then vested.

Front 112

• Executory Interest

Back 112

1. developed to do what the remainder cannot- divest or cut short the preceding interest.
2. A future interest in a transferee that can take effect only by divesting another interest.
3. Created in 1536 so reletively recent compared to other interests

Front 113

REMAINDERS

ELEMENTS

Back 113

1. Must have preceding estate
•Must be created by express grant in the same instrument in which the preceding possessory estate was created

2. Must follow a fee tail, life estate, or term of years•
A REMAINDER CANNOT FOLLOW A FEE SIMPLE (if it follows a fee simple it’s an executory interest)

3. Must be capable of becoming possessory on natural termination of preceding estate

Front 114

Indefeasibly vested:

Back 114

Remainder is certain of becoming possessory in the future an cannot be divested.

Front 115

• O conveys "to A for life, then to B and her heirs"

Back 115

• B has an vested remainder in fee simple absolute

Front 116

Vested subject to open/ Vested subject to partial divestment

Back 116

A remainder that is vested in a class of people that could grow

Front 117

What difference does it make whether a remainder is vested or contingent?

Back 117

A vested remainder accelerates into possession immediately at the end of the preceding estate, a contingent remainder cannot so long as it remains contingent

Front 118

Intervivos transfer of contingent remainders
common law
modern law

Back 118

 COMMON LAW:
• At early common law a contingent remainder was not assignable during the remainderman's life and was thus unreachable for creditors
• At common law contingent remainders were destroyed if they did not vest upon termination of the preceding life estate, whereas vested remainders were not.


MODERN LAW:
• In most states they are transferable now
• Constructed remainders are subject to the rule against perpetuities whereas vested remainders are not.

Front 119

Contingent Remainders

Back 119

It is given to an unascertained person
OR
It is made contingent upon some event occurring other than the natural termination of the preceding estate

In either situation the remainder is not now ready to become possessory upon the expiration of the preceding estate

Front 120

"To A for life, then to the heirs of B"

Back 120

1. B is still alive.
2. Cannot ascertain who B's heirs are until after B dies.
3. B's heirs have a contingent remainder in fee simple

Front 121

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

Back 121

1. B can get possession only if B survives A
2. B has contingent remainder, if B doesn't survive reverts to O

Front 122

1. "To A for life, then to B and her heirs if B survives A, and if B does not survive A to C and her heirs"

Back 122

1. Alternate contingent remainders

Front 123

1. To A for life and in the event of A's death to B and her heirs

Back 123

• Vested remainder

Front 124

2. To A for life, then to B for life, then to C and her heirs"

Back 124

• A has life estate
• B indefeasibly Vested remainder in LE
• C indef. Vested Remainder in fee simple

Front 125

3. O convys to A and B for their joint lives, then to the survivor in fee simple

Back 125

• Contingent remainder- don’t know who will survive

Front 126

4. To A for life, then to A's children who shall reach 21

Back 126

• A's oldest child, B, is 17. While A is still alive B turns 21.
• All children have a contingent remainder, it vests in B when B turns 21, subject to open for the other kids when they turn 21 but the kids still have contingent remainder
• If A dies before B reaches 21 at common law the remainder was destroyed at A's death. Under modern law the remainder is not destroyed and A's children can take after A's death when they reach 21

Front 127

• Executory Interest

Back 127

Creates a interest in a transferee that can divest a vested remainder before it becomes possessory.

Front 128

• O conveys "to A for life, then to B and her heirs, but if B does not survive A to C and his heirs"

Back 128

1. B does not have a contingent remainder, B has a vested remainder in fee simple subject to divestment
2. C has a shifting executory interest which can become possessory only by divesting B's remainder.

Front 129

• O conveys Blackacre "To A for life, then to B if B gives A a proper funeral"

Does B have a reminder or an executory interest?

Back 129

1. ANSWER: Executory interest
2. The funeral will not take place right at the time of death so reversion to O then after the proper funeral, B has an executory interest that divests O's possessory interest

Front 130

If the conditional element is incorporated into the description of, or into the gift to, the remainderman, then the remainder is.......

Back 130

contingent

Front 131

If, after words giving a vested interest, a clause is added divesting it, the remainder is .....

Back 131

vested.

Front 132

"to A for life, then to B and her heirs, but if B does not survive A to C and his heirs"

Back 132

• To A for life- life estate
• Then to B and her heirs- vested remainder
• but if B does not survive A to C and his heirs- B not surviving A is a conditional precedent on C's interest and a condition subsequent (or divesting condition) to B's interest

Front 133

 If the first future interest created is a contingent remainder in fee simple,
• the second future interest in a transferee will be...........?

Back 133

a contingent remainder.

Front 134

If the first future interest created is a vested remainder in fee simple,
• The second future interest in a transferee will be......?.

Back 134

a divesting executory interest

Front 135

Fee Simple Subject to an Executory Limitation

Back 135

A fee simple that, upon the happening of a stated event, is automatically divested by an executory interest in a transferee.

• Can be created either in possession or in remainder.

• Executory interests are treated as contingent interests, because they are subject to a condition precedent and do not vest until they become possessory

Front 136

O conveys "to A and his heirs, but if A dies without issue surviving him, to B and her heirs."

Back 136

• A has a possessory fee simple subject to an executory limitation (or subject to divestment by B's executory interest).

B's future interest can become possessory only by divesting A.

Front 137

O conveys "to A for life, then to B and her heirs, but if B dies under the age of 21, to C and her heirs."

Back 137

• B is age 15. B has a vested remainder in fee simple subject to an executory limitation (or subject to divestment by C's executory interest if B dies under age 21.)

Front 138

O conveys "to A for life, then to B and her heirs, but if B does not survive A to C and his heirs."

Back 138

• B has a vested remainder in fee simple subject to divestment.
• C has a shifting executory interest which can become possessory only by divesting B's remainder.

Front 139

Defeasible Fees

Back 139

Executory interests, which can only be created in a transferee, might be created to follow defeasible fees rather than a possibility of reverter or a right of entry, which can only be created in the transferor.

If a transferor wants to create a future interest in a transferee after a defeasible fee, it will necessarily be an executory interest.

Front 140

O conveys "to Hartford School Board, its successors and assigns, but if the premises are not used for school purposes during the next 20 years, to B and her heirs."

Back 140

• The school board has a fee simple subject to an executory interest that will automatically divest the Boards Fee simple if the condition happens.
• The executory interest differs from a right of entry in O, which is optional not automatic in divesting

Front 141

O conveys "to Town Library Board so long as the premises are used for library purposes, then to Children's Hospital."

Back 141

•The Library Board has a determinable fee simple

•Children's Hospital has an executory interest.

•The interest is not a divesting interest and should logically be classified as a remainder.

• It stands ready to succeed on the natural expiration of the preceding estate; it does not divest the determinable fee, which expires automatically.

•But the future interest cannot be a remainder because of the rule that a remainder cannot follow a vested fee simple.

•Though it doesn’t fit into the definition of an executory interest as a divesting interest, courts had to choose which rule it would violate and they chose to give the future interest the label of executory interest.

Front 142

THE TRUST

Back 142

•Trusts allow settlors to arrange their assets in ways that maximize flexibility in property management as well as transfer wealth to future generations

•The core is the separation of "legal" and "equitable" title

•Although the trustee is the legal owner, it is subject to orders from the equity courts which enforce the trustee's duties to the beneficiaries who hold the equitable interests.

Front 143

THE TRUST

TRUSTEES RIGHTS AN DUTIES

Back 143

• The trustee holds legal title to the trust property and manages that property for the benefit of the beneficiaries.

•The trustee has the power to sell trust assets and reinvest the proceeds in the other assets.

•A fiduciary duty to the beneficiaries

Front 144

THE TRUST

BENEFICIARIES RIGHTS AN DUTIES

Back 144

•The net income of the trust is paid to the beneficiaries and upon its termination, the trusts assets are handed over to them.

•have the right of beneficial enjoyment of the property.

•Hold equitable interest that corresponds to the legal possessory estates and future interests

Front 145

Destructibility of Contingent Remainders

Back 145

A remainder in land is destroyed if it does not vest at or before the termination of the preceeding freehold estate

Front 146

O conveys Blackacre" to A for life, then to B and her heirs if B reaches 21."

Back 146

If at A's death B is under the age of 21, B's remainder is destroyed. O now has the right of possession.

Front 147

What Happens When There Is A Merger of A Life Estate with A Reversion Interest?

Back 147

If the life estate and the next vested estate in fee simple come into the hands of one person, the lesser estate is merged into the larger.

Front 148

O conveys Whiteacre "to A for life, then to B and her heirs if B survives A."

Back 148

A conveys his life estate to O; the life estate merges into the reversion, destroying B's contingent remainder.

Front 149

Rule Against Perpetuities

Back 149

No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.

RAP applies only to interests that are not vested at the time of conveyance that creates them...
Contingent remainders
Executory Interests
Class Gifts

A Life In Being Can NEVER Be the Transferor

Front 150

T devises property " to my grandchildren who reach 21"

Back 150

Validating lives are T's children, have to the end of the last surviving children, at that point all of T's grandchildren will be born. Don't need the 21 years here.

Front 151

Class Gifts

Back 151

All or nothing rule
The interest of no member is vested until the interest of all the members are vested

A gift that is vested subject to open is not vested under RAP.

1.when all the class members will be ascertained
(within the lives in being plus 21 years?)

2.When all conditions precedent, if any, will be met for all members of the class
(within lives in being plus 21 years?)

Front 152

. UNBORN WIDOW

Back 152

conveyance "to A's Widow" is invalid because A could get married to someone who was not a life in being at the time of conveyance and title would not vest in the widow within 21 years

Front 153

FERTILE OCTAGENARIAN

Back 153

giving gift to children of A violates rap due to the fact a man could have children 21 years after conveyance

Front 154

1. O conveys blackacre to "the school board so long as it is used for a school

Back 154

i.School Board has a fee simple determinable;
ii.O has a possibility of reverter exempt from the RAP

Front 155

1. O conveys blackacre "to the School board, but if it ceases to use Black acrefor school purposes, O has a right to re-enter"

Back 155

i. The School board has a fee simple subject to condition subsequent
ii. O has a right of reentry

Front 156

8. What-Might-Happen Test

Back 156

• If there is any possibility that a contingent interest will vest too remotely, the contingent interest is void.
• Look at the interest at the time of creation and determine if it will vest or fail. If there is any possibility it will NOT VEST within 21 years plus life in being, then it fails.

Front 157

Reforms to RAP

Back 157

Wait and See Test
Statutory Age Of Fertility
Statutory Presumption- gift to spouse is gift to life in being
USRAP- 90 Years to Vest
Allow immediate reformation

Front 158

Reforms to RAP

Fertile Octegenarian

Back 158

anyone above 65 and below 13 incapable of reproduction
NY- anyone above 55

Front 159

Reforms to RAP

Unborn Widow

Back 159

Presumes that gift to surviving spouse of living person is gift to life in being

Front 160

Wait-and-See Test

Back 160

• Rather than invalidating an interest at the time of its creation on the basis of the what-might-happen test, we wait and see whether a contingent interest actually vests within some permissible vesting period.


• STEP ONE
•If the unvested future interest is valid under common law Rule, you are all set.

• STEP TWO
•If the interest is invalid under the common law Rule, then the interest can still be valid if it actually vests or terminates within the permissible vesting period.

Criticized because it doesn’t provide a means to demarcate the permissible vesting period.

Front 161

The Uniform Statutory Rule
Against Perpetuities (USRAP)

Back 161

90 years vesting period
i. Adopted by 24 states and DC

Youngest issue would be 6 years, life expectancy would be 69, plus 21 years equals the 90 year flat rate

Front 162

Perpetual Trust

Back 162

• Some states have totally gotten rid of RAP so there can be trusts forever as long as trustee has right to sell assets
• Estate Tax
oDoes not apply to widows
oLarge estate tax due to heirs upon transfer
o3.5 million exemption

Front 163

LEASEHOLDS

Back 163

1. Tenancy At Will
2. Periodic Tenancy
3. Term of Years

Front 164

Tenancy At Will

Back 164

No fixed length that endures so long as both landlord and tenant desire.

If the lease provides that it can be terminated by Can be terminated by either party

Front 165

Periodic Tenancy

Back 165

Lease automatically renewed unless notice is given

Front 166

Term of Years

Back 166

Lasts for some fixed period of time

Front 167

How did the modern laws change the common laws for Leaseholds

Back 167

1. Covenants in leases "mutually dependant"
a. If so then a material breach by one party would excuse further performance by the other party
2. If the leased premises are destroyed, does the tenant still have to pay rent?
3. If the tenant wrongfully abandons the leased premises, must the land lord take steps to mitigate the damages (ie: by looking for a new tenant)?
4. Is warranty of quality- that the premises are habitible or fit for their purpose- to be imposed on leases?

Front 168

Garner v. Gerrish

Back 168

• ** RULE**
The intent of the parties as expressed in the contract should rule and terms that were not expressed should not be implied by law unless that was determined to be the intent of the parties

K that basically created a tenancy at will for life with the right to termination only in the tenant is valid

Front 169

What is the effect of the right to terminate a Tenancy At Will when K states "so long as the leasee shall please"...
Under Common law?
Under Modern Law?

Back 169

COMMON LAW:
when a tenancy at will is created "so long as the leasee shall please" is imputed to also be at the will of the lessor.

MODERN LAW:
Express terms demonstrate the intent of the parties rule, a tenancy at will with the unilateral right to terminate in the tenant is valid and DOES NOT imply that the landlord has the right to terminate if its not expressly given.

Front 170

Crechale & Polles v. Smith

Back 170

**RULE**
 A Landlord that chooses to treat holdover as trespasser and then takes monthly checks without pursuing an action in eviction, has in effect elected to waive the eviction and treat the holdover as a month to month lease

Front 171

What happens when a teant holds over..

Under Common Law?
Under Modern Law?

Back 171

•COMMON LAW:
Holdover of a Term of Years lease gives the landlord the option of treating the holdover as a trespasser and move for eviction, or as a tenant and held to a K for another year

• MODERN LAW:
Different jurisdictions treat holdover differently;
1.Gives rise to a periodic tenancy

2. Results in a term

Term computed either by way rent is computed (month to month, etc.)
•The amount of the original term
*** MAXIMUM length is 1 YEAR in either case***

Front 172

Fair Housing is under what Amendment?

Back 172

14th

Front 173

Fair Housing

Back 173

Protects racist resident landlords renting out their house as long as they don't advertise they are discriminating on race
(1) nothing should apply to any house sold or rented to an owner who is a non-resident
Provided that the individual owner doesn’t have more than 3 such houses
Exception applies only once every 2 years
Maximum houses you can own and still discriminate is 3

**baisically imposing strict limits on real estate ads that show a preference on rent**

Front 174

HANNAH V. DUSCH

Back 174

Landlord has a duty to confer possession of the premises, not actual possession.

Front 175

What rights does the leasee have against a holdover tenant on their property? Against the landlord?

Under CL?
Under ML?

Back 175

COMMON LAW:
Landlord has a duty to confer possession of the premises, not actual possession.

MODERN LAW:
2 Rules

1. ENGLISH RULE
--Implied covenant requiring the lessor to put the lessee in possession

--You can bring suit against the landlord for possession against holdover tenant

REASON: Holdovers are best known by the landlord, and a leasee would not knowingly K for a lawsuit


2. AMERICAN RULE
--Recognizes the leasee's legal right to possession, but implies no duty on the landlord to put the leasee in actual possession

--You have to bring suit against the holdover tenant for possession

REASON: not fair to hold landlord liable for actions of another when he didn't K for it, and he could have

Front 176

ENGLISH RULE

Back 176

implied covenant requiring the lessor to put the lessee in possession

--You can bring suit against the landlord for possession against holdover tenant

REASON: Holdovers are best known by the landlord, and a leasee would not knowingly K for a lawsuit

Front 177

AMERICAN RULE:

Back 177

Recognizes the leasee's legal right to possession, but implies no duty on the landlord to put the leasee in actual possession

You have to bring suit against the holdover tenant for possession

REASON: not fair to hold landlord liable for actions of another when he didn't K for it, and he could have

Front 178

ERNST V CONDITT

Back 178

FACTS
Rogers lease property from Ernst for go karts
Rogers then sublease to Conditt
Rogers K with Conditt that he is going to practice all conditions of the lease with Ernst,
Conditt stops paying Ernst

RULE:
• Intent of the parties control whether it’s a sublease or assignment and the use of words such as "sublease" or "sublet" in the K is not enough to establish a sublet.

Front 179

DIFFERENCE BETWEEN SUBLEASE AND ASSIGNMENT

Under CL?
Ubder ML?

Back 179

COMMON LAW:

SUBLEASE:
•If a tenant transfers LESS THAN the entire remaining term of the leasehold, retaining a reversion interest

•Sublessee not in privity of estate with landlord and not liable for breach

•Original tenant only liable

ASSIGNMENT:
•If a tenant transfers the ENTIRE remaining term of the leasehold

•retaining a right of re-entry if covenant breached is not considered a reversion interest so its not a Sublease

•Assignor is in privity of estate with the landlord and can be liable for breach

•Assignor and original tenant can be held liable

MODERN LAW:
***ERNST v. CONDITT FOLLOWS THE MINORITY VIEW****

MAJORITY:
•Retaining a right of entry, even for a transfer of the entire term, makes it a sublease

MINORITY:
Intent of the parties control whether it’s a sublease or assignment and the use of words such as "sublease" or "sublet" in the K is not enough to establish a sublet.

Front 180

COMMON LAW DEFINITION OF SUBLEASE

Back 180

SUBLEASE:

•If a tenant transfers LESS THAN the entire remaining term of the leasehold, retaining a reversion interest

•Sublessee not in privity of estate with landlord and not liable for breach

•Original tenant only liable

Front 181

COMMON LAW RULE ON ASSIGNMENT

Back 181

ASSIGNMENT:

•If a tenant transfers the ENTIRE remaining term of the leasehold

•retaining a right of re-entry if covenant breached is not considered a reversion interest so its not a Sublease

•Assignor is in privity of estate with the landlord and can be liable for breach

•Assignor and original tenant can be held liable

Front 182

Modern Law Rule on Whether a Transfer is a Sublease v. Assignment

Back 182

MAJORITY:
•Retaining a right of entry, even for a transfer of the entire term, makes it a sublease

MINORITY:
•Intent of the parties control whether it’s a sublease or assignment and the use of words such as "sublease" or "sublet" in the K is not enough to establish a sublet.

Front 183

KENDALL V. ERNEST PESTANA, INC.

Back 183

oAny businessman/co. can protect their right to arbitrarily uphold their right to withhold a lease as long as its express in the K

RULE ON TRANSFERABILITY OF LEASHOLDS:
Follows Minority View

•Unless there is a covenant to the contrary, a leasehold is freely transferable by the tenant.

Front 184

RULE ON TRANSFERABILITY OF LEASHOLDS:

Back 184

•Unless there is a covenant to the contrary, a leasehold is freely transferable by the tenant.

Front 185

RULE ON COVENANTS AGAINST TRANSFERS OF LEASEHOLDS:

Modern Law

Back 185

MAJORITY:
•Lessor can arbitrarily withhold consent to a transfer of a leasehold

MINORITY:
•A Lessor can refuse consent to a transfer of leasehold ONLY WHEN REASONABLE

•Reasonableness based on a RPPUSSC

•CANNOT REFUSE in order to try and get tenant to terminate

•EXAMPLE:
Pestana wanted to get higher rent from new tenants

Front 186

BERG V. WILEY

Back 186

SELF-HELPo Brother Berg has to get permission to make changes, operate in a lawful and prudent manner, Wiley could re-enter if Berg violated the K terms
oBerg sublets to sister berg who makes changes to the kitchen, without Wiley's consent

oFails health inspection, Wiley tells them to clean it up

oWiley changes the locks (Self-Help)

Berg Wins- Wiley should have used judicial process, his entry was not peaceful

Front 187

SELF-HELP
Common Law
Modern Law

Back 187

COMMON LAW:
Self-Help allowable then when:
• landlord has right to possession, and/or
•Removes the tenant peaceably

•MODERN LAW:
Landlord must always resort to the judicial process to enforce his statutory remedy against a tenant wrongfully in possession.

Front 188

SOMMER V. KRIDEL

Back 188

Landlords duty to Mitigate Damages

Guy an fiance rent apt. for 2 yr term after marriage

they break up he sends notice he won't be taking possession

Landlord keeps apt open for the 2 years doesn't re-rent it even to other interested parties

Court says economic waste when you don't make reasonable attempts to mitigate

Front 189

Landlord's duty to mitigate damages

COMMON LAW
MODERN LAW

Back 189

• COMMON LAW:
Landlord has no duty to mitigate damages

• MODERN LAW:
Landlord has a duty to make a reasonable effort to mitigate damages

Front 190

quiet enjoyment

modern v. common law

Back 190

COMMON LAW AND MODERN LAW ARE THE SAME:
A Tenant has the right of quiet enjoyment of the premises without interference by landlord.

If there is no covenant of quiet enjoyment in the lease, it is always implied by law.

Front 191

Reste Realty Corp. v. Cooper

Back 191

o Flooding of basement office every time it rained was constructive evictment because it frustrated her right to use and quiet enjoyment

Front 192

RULE OF CONSTRUCTIVE EVICTION:

Back 192

COMMON LAW:
When landlord rpevents the tenant from getting the enjoyment bargained for, tenant can only sue for damages.

MODERN LAW:
When the landlord substantially interferes with the tenants use and enjoyment of the leae premises the tenant may terminate &vacate and then be excused from further rent liability.

•Substantial Interference when:

•RPPUSSC

•Purposes which the premises were leased

•Forseeablility of the interference

•Potential duration of the interference

•Nature and degree of harm caused

•Availability of means to abate the interference

EXCEPTIONS
• Tenants KNOWLEDGE:
• Landlord must have NOTICE:
• T must give up POSSESSION

Front 193

Implied Warranty of Habitability:

Back 193

Hilder v. St. Peter

• COMMON LAW:
No duty to deliver habitable premises- as is

• MODERN LAW:
A landlord has a duty to deliver habitable premises and of maintaining them in a habitable shape.

Landlord must first be notified of defect and given reasonable time to cure it

Knowledge of defect DOES NOT WAIVE right to claim breach of warranty

Warranty CANNOT BE WAIVED IN K

EXCEPTIONS:
•Single Family Rentals
•Long Term rentals
•Casual subleases
•GENERALLY NEVER FOR COMMERICAL LEASES

Front 194

Hilder v. St. Peter

Back 194

o Tenant leases slum apartment
o Unclean, broken window, no locks, sewage in basement, ceiling caving in from water damage
o She doesn't have to leave to claim breach of warranty of habitability

Front 195

HOW TO DETERMINE WHAT IS INHABITABLE:

Back 195

Housing Code:
• Must be major violations or multiple minor one
• A few minor violations aren't enough to be considered inhabitable
• Also look to whether it is fit for habitation
• A substantial violation of housing code constitutes prima facie evidence of a breach

Fit For Human Habitation:
• Defect has a significant impact on the health or safety of the tenant

Front 196

Implied Warranty of Habitability:

Tenants REMEDIES

Back 196

Terminate & Vacate Lease

Continue and Recover Damage

Continue Lease and Use Rent To Repair

Continue Lease and Withhold Rent

Exceptional Remedies:
• Damages for Discomfort and Annoyance
• Punitive Damages:

Front 197

Implied Warranty of Habitability:
Tenants REMEDIES

Terminate & Vacate Lease

Back 197

•Relocation costs

•Difference between rent and actual worth of lease

Front 198

Implied Warranty of Habitability:
Tenants REMEDIES

Continue and Recover Damage

Back 198

• Usually a rent reduction is applied
• Pay for Premise As-Is
•Value of rent - fair market value with defects
BAD b/c if you are renting it for the amount its actually worth with damages you still won't get anything and landlord doesn't have instigation to rehabilitate.

• Loss of bargain
•Give the tenant what he bargained for
•Difference between the worth of habitable non defective premise - value of premises AS IS

Front 199

Implied Warranty of Habitability:
Tenants REMEDIES

Continue Lease & Use Rent To Repair

Back 199

•Must first give landlord notice of defect and allow reasonable time to repair

•After landlord fails to repair you must then give notice you intend to use rent to repair

•Repairs must be reasonable

•Some state enforce this by statute

Front 200

Implied Warranty of Habitability:
Tenants REMEDIES

Continue Lease and Withhold Rent

Back 200

•Notice to landlord and failure to cure within a reasonable time

•Defect existed during the time for which the rent was withheld

•Once the landlord corrects the defect, the tenant has to start paying rent again

Front 201

Retalitory Eviction

Back 201

Common Law:
Terminate at will leaseholds at any time

Modern Law:
To protect against retalitory actions, creates a rebuttable presumption of a realitory purpose by a landlord who attempts to terminate, increase rent, or decrease services within a time period ( generally 90-180 days) of a good fait complaint or other action by a tenant based on the condition of the premises.