Property 2 Flash Card Set Week 1 Short Answer

Front 1

When is eminent domain permissible pursuant to the 5th amendment?

Back 1

The Takings Clause, the last clause of the Fifth Amendment, limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but since Chicago, B. & Q. Railroad Co. v. Chicago (1897),

Front 2

Public use examples...

Back 2

---Public swimming pool
---A church or synagogue
---A library

Front 3

How has public use expanded through federal case law?

Back 3

Berman V. Parker, Kelo V. City of New London

Front 4

Who decides what is a public use?

Back 4

The U.S. Supreme Court has consistently deferred to the right of states to make their own determinations of public use, although the reason why the constitutional term "public use" should not be subject to judicial interpretation, the same as other constitutional terms, has not been explained.

Front 5

How is just compensation calculated?

Back 5

The just compensation remedy is provided by the Fifth Amendment's taking clause, and is usually considered to be fair market value. However, what the government considers just compensation may not be considered as such by the person whose property is seized.

Front 6

What does it mean to say that the Court in Berman rejected a piecemeal approach?

Back 6

It means that the government cannot break apart pieces of land to take. They must take the whole, cannot break up.

Front 7

Can private property be taken from A and given to B through the exercise of eminent domain?

Back 7

Yes, there can be transfer through exercise of eminent domain...

Front 8

If so, when is that permissible under Kelo and Midkiff?

Back 8

Under Kelo the satisfaction is met where it was found to be constitutional due to the fact that the constitutional 'public use' requirement was met.

Front 9

*How does one determine the period of a periodic tenancy in both a majority and a minority rule jurisdiction?

Back 9

Majority rule: is that the period of periodic tenancy is based upon the manner in which the rent is reserved.
Minority Rule: Periodic tenancy based upon the way the tenant is paid.

Front 10

If the lease was for no fixed term, with a rental amount of $24,000 per year, payable $2,000 per month. What type of lease is it? What minimum notice to terminate would be required at common law and modernly, assuming the lease was silent on the point?

Back 10

This would be a periodic tenancy. Year to year lease, and 6 months notice of termination required.

Front 11

What two options are available to a landlord when she has a holdover tenant?

Back 11

English rule (majority rule) says that the landlord must provide both legal and physical access to the property on the first day
American Rule: Says that the landlord must merely provide legal right to possession on the first day, and the tenant is to provide the physical access.

Front 12

Who is protected under Section 3604 of the Federal Fair Housing Act, and when are they protected?

Back 12

provides that it is unlawful to discriminate in sale or rental, or to otherwise make unavailable or deny, to any buyer or renter of handicap. This section creates three distinct claims for violation:
1. Discriminatory Intent in the Enforcement of the covenant.
2. Disparate impact.
3. Reasonable Accommodation

Front 13

What are the exemptions from Section 3604?

Back 13

(b) Exemptions
Nothing in section 3604 of this title (other than subsection (c)) shall apply to -
(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single family houses at any one time: Provided further,….

The requirements for exemption continue, however we are only concerned here with the meaning of “[no more] than three such single family houses…”

Front 14

What protections do 42 U.S.C Section 1982 and the 14th Amendment offer?

Back 14

42 U.S.C. Section 1982 says that "all citizens of the U.S. shall have the same right in every state and territory as is enjoyed by white citizens thereof of inherit, purchase, lease, sell, hold, and covey real and personal property." This section only covers RACIAL discrimination (which is like black, white; NOT polish, English, Jamaican (which are national origins)
14th amendment: To prohibit states from discriminating. If it is discriminating then there is state activity going on. This amendment comes in when it applies to housing subsidies, when the courts are called to enforce a discriminatory provision, the court cannot do it because they will violate this amendment.
----Ex, there is a restriction on property that says anyone that is green can't be leased the property, and the landlord leases the property to Kermit the frog, and someone comes and says that that violates the clause because they want the private restriction to be enforced, the courts cannot uphold that restriction because it is a rest

Front 15

Regarding possession of property in a Landlord/Tenant relationship, what are the American and English Rules?

Back 15

The landlord need only provide legal possession. States have largely split over embracing the English or American rules;
English Rule: A landlord who breaches his duty to provide possession will be held liable for damages.

Front 16

What is the difference in an assignment and a sublet?

Back 16

The right of possession may be transferred by the tenant to a third person either by sublease or assignment, provided the landlord gives consent when required. The substance of the transfer, rather than its form, may well determine the parties' liabilities to the landlord (see below). Thus, when the tenant retains some right of reentry onto the leased premises, the law deems the transfer a sublease. On the other hand, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, the transfer is an assignment.

Front 17

Which lease covenants run with the land?

Back 17

A covenant running with the land, is a real covenant, in the law of real property. It is a nonpossessory interest in land in one form as an agreement between adjoining landowners to do something (affirmative covenant) or to refrain from doing something (restrictive covenant) with relation to the land. An example of an affirmative covenant is a promise to build a fence, while an example of a restrictive covenant is a promise not to develop land for commercial use. Another agreement form that is common is as a Covenants, Conditions, and Restrictions (CC&R) document as with a condominium.

Front 18

In an assignment context, who and how can L sue in the event of breach?

Back 18

In the event of breach of lease that has been assigned, L could sue To under privity of K, and/or T1 under privity of estate (for breach of covenant running with the land.)

Front 19

Explain the 3rd Party Beneficiary Rule.

Back 19

A third party beneficiary, in the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been an active party to the contract. This right, known as a ius quaesitum tertio, arises where the third party (tertius or alteri) is the intended beneficiary of the contract, as opposed to an incidental beneficiary. It vests when the third party relies on or assents to the relationship, and gives the third party the right to sue either the promisor (promittens, or performing party) or the promisee (stipulans, or anchor party) of the contract, depending on the circumstances under which the relationship was created. A contract made in favor of a third party is known as a third-party contract or contract for the benefit of a third party (stipulatio alteri), and any action to enforce a ius quaesitum tertio is known as a third party action.