Property

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Fee simple absolute

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i. Provides the entire ownership. The most powerful type of estate/right.
ii. Phrase- “To B and his heirs”

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Life Estate

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i. Granted to B for the duration of his life. After which reverts back to grantor
ii. Phrase- “To B for life”

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c. Fee Tail

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iv. At A’s death, the land descended to A’s lineal heirs. If no lineal heirs survived A, the land reverted to original grantor.
v. Phrase- “To B and the heirs of his body”
vi. Common Recovery- Lawsuit. End result- person with a fee tail could sell it. Collusive. Lawsuit based on lies. Lasted into the 1800’s.

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vii. Bauer v. Bauer

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3. Holding: use of purchase words made deed into fee simple estate rather than fee tail.

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b. Fee Simple Determinable

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i. Estate will revert back to grantor automatically if condition is met.
ii. Phrase- “While”, “during” and “so long as.”

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c. Fee Simple Subject to Condition Subsequent

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i. Estate will revert back to grantor after condition is met AND grantor exercises right to reentry.
ii. Phrase- “on the condition that” or “provided that.”

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d. Hagaman v. Board of Education

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iii. The court had to analyze whether or not the language in the deed constructed a FED or FESSCS determinable estate (“solely for the purpose of…” etc). The court found no words in the deed that indicated intent to create a fee simple determinable or a fee simple subject to a condition subsequent.

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f. Types of Restraint

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i. Promissory Restraint
1. If the promissory note is breached by the grantee, the grantor may sue for damages. Unlike disabling restraints, the effectiveness of the lawsuit does not prevent the transfer from being made. However, the Supreme Court says promissory restraints are not permissible. The promissory note, "chills," the interest of the person getting ready to sell the property which is the same effect as the disabling restraint.
ii. Forfeiture restraint
1. In the event of a breach the property returns to the grantor or the grantor's heirs. The return happens automatically, hence the argument can be made that there is no state actions. However according to a constitutional argument the mere fact that the state recognizes the validity of an automatic transfer makes it a state action.
iii. Disabling Restraint
1. To be effective the grantor must sue the grantee for enforcement. The effectiveness of the lawsuit could prevent the transfer from being made. In addition, if the disabling restraint is found to be unconstitutional the restraint will not be effective.

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g. Mountain Brow Lodge v. Toscano

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ii. The first part of the deed was found to be a valid condition creating a fee simple subject to condition subsequent: land shall be used for fraternal purposes or title will revert to grantor. The second part of the deed was held to be an invalid restraint on alienation: this part made it difficult or impossible for Mountain Brow to alienate the property.

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ii. Life estate with power of appointment

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1. Give someone a life estate, and give someone the power to appoint who gets it after them

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iv. Rules of Construction

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1. Keep estate in bloodline
2. Promote alienability
3. Avoid intestacy
4. Intestacy statute, depending on state
a. Person who gets estate by intestacy- heir
b. Person who gets estate by part of will- devisee
c. Person who gets estate because of stocks etc.- legatee
5. Avoid interpreting the will so that it would be invalid under common law

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g. Waste

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i. Any act of the life tenant which does permanent injury to the inheritance is waste.
ii. Classic notion was that if you were a life tenant and changed the property in any way, this was waste. Now, only if you decrease the value of the property will there be waste.

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iii. Forms of waste

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1. Voluntary acts of commission that are ameliorative in effect
a. No damages for ameliorative waste anymore
2. Voluntary acts of commission that are destructive in effect.
3. Voluntary inactions that are injurious in effect
4. Failures to prevent conduct of an outsider that is injurious in effect
5. Equitable waste.
a. Give property to life tenant without impeachment of waste. Life tenants are ordinarily not responsible for permissive waste—failure to make normal repairs to property to protect from deterioration. However, if the tenant acts very destructively, a court can intervene and stop the destructive conduct. This is called equitable waste. Good husbandry/Prudent Owner test

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i. Remedies for Waste

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i. The court may award money damages in an amount sufficient to compensate the injured party for the loss resulting from the waste.
ii. The court may directly require the party responsible for the waste to restore the property to its original condition.
iii. The court may accelerate the passage of title in the land, divesting a tenant or life estate holder of the property and vesting it in the landlord or remainderman

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b. Remainder

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i. Remainder is a future interest crated in a third party transferee. It is capable of becoming a present possessory interest on the normal expiration of a prior possessory interest when that prior interest as created in the same instrument as the remainder.
1. A to B for life, then to C
a. C has a remainder.
ii. How to determine whether a future interest is a remainder
1. When a transferor would have a reversion, but instead created the equivalent interest in a third party (C), C has a remainder.
a. When an estate terminates naturally.
2. Cannot have a remainder after a defeasible estate.
a. Has an executory interest.

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1. Vested

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a. Remainder to an ascertained person who takes when the prior estate naturally terminates.
b. Example: O to A for life, then to C.
c. A to B and the heirs of his body, but if B dies without children, then to C. (C takes possession when fee tail naturally terminates.)

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2. Contingent

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a. Remainder that either is created in favor of an unascertained person or is subject to a condition precedent
b. Possessory at the natural termination of a prior estate.
c. Example: -A to B for life, remainder to C if C survives B, otherwise to A. C has a contingent remainder because it is subject to a condition precedent—surviving B.
d. -A to B for life, then to C if C marries before B dies. C has a contingent remainder because it is subject to his future marriage.
e. -A to B for life, remainder to B’s children. B has no children at time of grant. B’s children have a contingent remainder because they are unascertained. Once B has a child, the child has a vested remainder
f. A to B for life, remainder to B’s surviving children. B has two living children. We cannot determine which children have survived until B dies, so they all have a contingent remainder. Any yet to be born children also have a contingent remainder.

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3. Executory Interest

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a. If C does not hold a remainder, it holds an executor interest.
b. There are two types of executor interests
i. Springing
1. An interest with a time gap. C cannot have a remainder, so C has an executory interest.
a. A to B one year after today. B’s interest is not a present possessory interest, because B must wait one year.
b. A to B for life, then to C one year after B’s death. During the year, the property reverts back to A. C will get the property after the year.
c. A to B for life, then to C one year after B’s death. During the intervening year, the property reverts back to A. Thus C will divest the grantor after one year.
d. A to B for life, then to C if C reaches age 21. C is 19 when B dies. Property returns to A. If C eventually reaches 21, C divests A of the property. Prior to B’s death, C has a contingent remainder. After B’s death, C has a springing executor interest which will mature into a fee simple if C later reaches age 21.
ii. Shifting
1. Immediately follows a fee simple defeasible. If a condition of the defeasible estate is broken, the interest shifts to a third party.
a. A to B, but if B dies without surviving children, then to C.

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b. Destructibility of Contingent Remainders

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i. O to A for life, and, if B has reached 21, remainder to B. B is under 21.
1. B has a contingent remainder. If B does not reach 21 by the time A dies, B’s future interest is destroyed forever. O’s successors get the property in fee simple absolute.
ii. O to A for life, remainder to the heirs of B. B is still alive.
1. Suppose A receives O’s reversionary interest. A now has a life estate plus a reversion. The old common would say that these two interests merge and give A a fee simple absolute.

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c. Rule in Shelly’s Case

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i. O to A for life, remainder to the heirs of A
1. A would hold a fee simple absolute. Life estate plus remainder in fee simple equals present possessory fee simple.
ii. O to A for life, remainder to the heirs of A’s body.
1. A would hold a fee tail. Life estate plus remainder in fee tail equals a fee tail.

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d. Doctrine of Worthier Title

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i. O to A for life, remainder to O’s heirs.
1. If O is alive when O makes the grant, the transfer is inter vivos. In this case, the doctrine would nullify the remainder interest of O’s heirs and give O a reversion.
2. If O makes the grant in a will, O’s heirs would take the property by descent upon A’s death—that is, via intestacy as opposed to will.

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VI. Drafting Wills

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a. Wills are governed by statute. Every state has a statute that authorizes wills and tells you how to write wills.
b. Wills are not unchangeable. You may tear up old will and write a new will.
c. Attestation clause: identifies the witnesses and recites that the will has been executed in accordance with statutory formalities. Need witnesses to sign your will. Witnesses should not be persons who have an interest in your will.
d. Name someone as executor. The executor will pay debts, give money to your beneficiaries.
e. Name someone as trustee. Often a bank is a trustee. The trustee will work in conjunction with the guardian—e.g. the trustee will look over the money until the children are of age.
f. Codicil: Add-on to will—minor changes.
g. Escheat- If a person dies intestate and there is no one who gains the estate under the intestacy statute, the estate becomes the property of the state government.
h. A dies and wills certain property to his two children. A’s child B has two children. A’s child C has one child. If both B and C die, how will property be divided among grandchildren?
i. Per capita: Property divided equally among three grandchildren.

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VII. The Rule Against Perpetuities

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a. A common law rule that invalidates the dead hand of the past. The rule does not strike down all perpetuities. It has nothing to do with the length of ownership and does not apply to anything the grantor owns. In order to be valid/invalid, a grant must vest/not vest within a certain time period—a measuring life plus 21 years.

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b. Strategy for Applying the Rule

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i. Make sure the interest is subject to the Rule. The interest must be a contingent remainder or an executory interest.
ii. Identify the deadline: find a life in being and add 21 years.
iii. Try to identify a series of events under which the interest in question might vest after the deadline. Series of events may be highly unlikely as long as it is possible.
iv. If you cannot identify such a series of events, the interest is valid.
v. If you can identify such a series of events, pick another life in being and determine the deadline. Repeat the process.
vi. Once you find a measuring life that gives you a deadline for which the interest is valid, stop. The interest is valid under the Rule. If you can’t find a valid interest, interest is invalid under the Rule.

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d. Symphony Space

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Held: language in option clearly violated the Rule, since the option to repurchase in 2003 was after 21-year perpetuities period. Argument that court should have adopted a “wait and see” approach, since S.S. and B (now Pergola) had a mutually beneficial arrangement worked out. Strict enforcement of the Rule deprived them both of their use of the property.

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e. “Wait and See” approach to the Rule of Perp.

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i. Some courts will wait to see if the interest actually vests within the perpetuities period, and will then declare it valid if it does. Takes projecting element out of the Rule.

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f. Savings Clause

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i. Clause designed to ensure that grants are not invalidated due to any potential violations of the Rule. E.g. “if anything in here violates Rule of Perp, then that part is invalid but rest of grant is valid.”

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b. Tenancy For Years

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i. having a fixed or computable period of time
ii. tenancy has specified (deteminable) beginning and termination dates – lasts for as long as it is set up to last
iii. No notice is necessary for tenant or landlord. Just ends automatically on date of termination, unless the lease specifies advance notice, as for option to renew. MODERN trend is for L to give 30 days notice.
iv. Tenant must pay rent during the tenancy.
v. Although the term of years must have a fixed duration, the term may be defeasible (ex. L to T for 2 years, but if T does not pay the rent, L may terminate the lease.)

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c. Periodic Tenancy

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i. T rents an apartment at a fixed monthly rental. L and T agree that either party may end the arrangement by giving the other party 30 days notice.
ii. Estate continues automatically for successive periods unless either party acts, through giving notice, to terminate the estate.
iii. Month-to-month, year to year
iv. No specific end to lease, but tenancy must end at the end of a normal lease period (ex. last day of the month), not in the middle
v. Notice required in advance, for both L and T. Length of required notice varies. For a month-month tenancy, probably give 30 days notice. For 6 month tenancy give 6 month notice. For a periodic tenancy for a year or longer, give 6 months notice.
vi. Tenant must pay rent during the tenancy

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d. Tenancy at Will (Estate at Will)

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i. Will last as long as both the L and T desire – terminable at will by either L or T at any time. Ends immediately.
ii. Comes to an end when either party wants it to end (also can end when one party dies, or when one party transfers their interest in tenancy to a 3rd party)
iii. No notice requirement
iv. Tenant must pay rent during the tenancy
v. As a rule, tenancy at will is not the product of agreement, but instead is read into an arrangement after the fact – by a court in which the parties have a dispute – usually temporary while parties work out differences (ex. T in possession of premises while negotiating renewal and negotiations fail; T in possession under oral lease in a jurisdiction requiring written leases; T is very ill and unable to vacate premises until 15 days after expiration of the term; T takes possession under a letting for an undefined period and there is no reservation of a periodic tenant.)
vi. Unless the L and T expressly agree to a tenancy at will, courts may interpret as a periodic tenancy b/c of regular rental payments.
vii. Court do not like these tenancies b/c they are unstable

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e. Occupancy at Sufferance

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someone having a valid tenancy (or other possessory interest) who has since lost the legal right to remain. Tenancy has come to an end but L hasn’t kicked you out yet. Occupant held over unlawfully but L hasn’t kicked T out. T may be ordered, after failing to pay rent, to vacate. Lease has ended, and there has been no new agreement (T is HOLDING OVER).
i. Lasts until L takes action
ii. Comes to an end when L effects order to vacate
iii. By definition, no notice requirement. Can evict immediately.
iv. Common law…no rent during the sufferance period. (only category which does not require rent) If L was to take rent, its like he is admitting T has a right to be on premises.
v. BUT trend of law is to require notice and rent for purposes of fairness (most states give L a statutory money claim for reasonable rental value)
vi. Most likely this tenancy occurs when L is waiting for a court to eject T
vii. Often have holdover tenant and it is not clear what landlord is doing.

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f. Holdover Tenants

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T stays after lease has expired
i. T is ultimately treated as a trespasser and evicted from property OR becomes a periodic tenant
ii. Really is L’s choice of how to treat T…normally consider a periodic tenancy if prior lease was more than 1 year. Anything shorter, consider period of prior lease. Ex. 2 year lease, T holds over and pays rent, court assumes renewal of a 1 year periodic tenancy
iii. While L is deciding which to effect T has a tenancy at will.
iv. If negotiating, holdover tenant has tenancy at will during negotiations
v. “Tenant” may still send rent and L can accept it.
vi. Courts like stability and try to find L-T relationships, so will usually find a tenancy and find that a renewal of the old lease if T pays rent, or will maybe find a periodic tenancy. Even if no words are exchanged and no rent if offered or accepted, court will still try to find a periodic tenancy.
vii. When ambiguous, find a new tenancy has been established.
viii. These rules are common law rules and can be changed by language in the lease, or before lease expires, or delineate the terms of a holdover
ix. L has burden of proving T is holding over. T has tough burden of asserting an affirmative defense of negotiations or consent.
x. L has no burden to mitigate damages b/c T can leave at any time. T is trying to get a freebie in bad faith and it is unfair to force L to mitigate costs.
xi. A tenant who remains after the expiration of the term of the lease is not a holdover tenant and is liable for the full year’s rent:
1. (1) if the landlord consents to the tenant remaining on the premises on a month to month basis or temporary period, or
2. (2) if the landlord and tenant were actually engaged in negotiations as to a renewal of the lease when the previous term ended.

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g. Nitschke v. Doggett

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i. A tenancy for years must have a fixed beginning and end. Although D claims that the inevitability of his death makes the term of the lease certain, the ct. holds that because the time of D’s death is uncertain, it can’t be used to mark the end of the lease
ii. If you wanted to draft a lease provision so that D would have the lot for life, you can make it for a term of years that would outlast his life—this way he would get a share of the condemnation proceedings.

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IX. Nature of Tenant-Landlord Relationship

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a. L and T law is more governed by contract law. Today, most covenants are dependent –goes to the heart of the lease, if violated, other party can terminate lease. Covenants – give injured party a reason for terminating lease. 1960s modernized L-T law. When modern cts. called certain covenants dependent, cts. said they were no longer following property law and were now applying contract law. This was a different conceptual view—not quite true. Duties must go both ways (not just giving property for quiet enjoyment.) New law gives T more rights (contract law)

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b. University Club v. Deakin

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i. D leased space to P. Clause 12 of the lease provided that D agreed during the term of the lease to not rent to any other tenant who would make a specialty out of selling Japanese or Chinese goods or pearls. D rents to another tenant, who starts to sell pearls. P vacates the space, stating that D breached the lease. D sues to enforce payment of the rent. Held that the lease was a bi-lateral contract between P and D. Clause 12 was a dependent covenant of the lease, and if it was breached, P could end the lease.
ii. Because of Clause 12, it was D’s duty to prevent other tenants from selling pearls. D had to take a very active role. Traditionally, landlord has a more passive role, but the ct. here is saying that the landlord has to do more.

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c. Delivery of Possession: Two Competing Rules

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i. Example: On August 1, L rents T an apartment for two years to start September 1. X, the present tenant, holds a lease expiring August 31. That day, L phones T to say that X can’t leave until October 1. In the meantime, T’s present apartment has been rented as of September 10. What are T’s rights and remedies?
ii. Under American Rule: L is not required to place T in possession of the apartment; L is only required to deliver legal possession of the apartment. L’s duties end and T is required to pay agreed-upon rental and fight X for possession of the apartment.
iii. Under English Rule: Unless the lease provides otherwise, L is required to place T in actual possession of the apartment. English Rule is the majority rule.
iv. T’s remedies if L cannot get him real possession of the apartment
1. T can terminate the lease and recover damages sustained by having to obtain housing elsewhere.
2. T can affirm the lease, refuse to pay rent for portion of the term during which he was kept out of possession and recover damages.
3. L brings action against holdover tenant. L could make holdover tenant give up security deposit as liquidated damages. Summary process is an expedited version of civil procedure that is particular to property law.

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a. Retaliatory Eviction

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i. Typically occurs when L evicts T, or refuses to renew T’s lease, in retaliation for T complaining to housing authorities about housing code violations.

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e. Effects Test

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i. L’s intent is not important. Must look at effect on people…T must show that L’s policy results in discriminatory effects. T does not have to show that L’s policy is racially motivated; T only has to show that L’s policy actually or predictably results in racial discrimination—that it has a discriminatory effect. Defense is that L has a legitimate business interest and no alternative course of action to promote goal of financial stability. (Courts usually affirm L’s business arguments, if there is a legit. business interest.)

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f. Kramarsky v. Stahl

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i. There is nothing illegal in a landlord discriminating against lawyers as a group, or trying to keep intelligent persons out of his building who may give him trouble in the future.
ii. A landlord has the right to be selective and to reject a prospective tenant because of her failure to meet standards of acceptability other than those of race, etc.

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g. Marina Point v. Wolfson

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i. P could not discriminate against a broad class of people—children—under state statute. P could deal with families with unruly children on a case by case basis.
ii. Landlords may not enforce a broad exclusionary policy that operates to deprive innocent individuals of their rights to landlord’s services.

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h. U.S. v. Starrett City and Assoc.

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i. The Fair Housing Act does not allow landlords to use rigid racial quotas of indefinite duration to maintain a fixed level of integration at apartment complexes by restricting minority access to scarce and desirable rental accommodations otherwise available to them. Landlord may not integrate by using discrimination.

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XI. Landlord’s Self-Help

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a. Courts favor people using judicial system and not self help
b. Three Reasons
i. Whenever there is resort to self help, violence usually occurs.
ii. To sanction the validity of self help would deny the tenant her rights to assert all of the defenses available to her. Self help prevents the right to trial by jury and the defense of retaliatory eviction.
iii. As a matter of public policy, self help should not be recognized. Most people who have a grievance against society are told that they must seek redress through established legal and political channels. Self help interferes with the rights of others and should not be favored in a society where official safeguards against oppression and abuse exist

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c. Restatement Section 14.2-14.3 ***NOT WIDELY FOLLOWED***

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i. Preserves the use of self-help where “controlling law permits.” Requires that self-help recovery be accomplished:
1. within a reasonable time after the lease terminates,
2. without causing physical harm, or the reasonable expectation of physical harm, and
3. by using reasonable care to avoid damage to the property of the tenant.

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i. Distraint/distress

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1. L gains an interest in T’s personal property only when T defaults and when L seizes property, not from beginning of lease. Interest vests when T defaults. As a common law remedy, permits L to seize personal property of T without notice to T and hold (distrain) the property as security until T pays. Not popular in U.S. Some states do not allow it; others have codified it, but don’t allow L to acquire property w/o public official or warrant and usually cannot take necessary items. Allow someone to take T’s goods and hold them until he pays.

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ii. Statutory Leins

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1. L’s interest in T’s property arises at the beginning of tenancy, when T signs the lease. Authorizes L to claim property interest in T’s property until rent is paid from the time of execution of lease when property enters the premises. L’s prefer liens b/c T knows about the lien from the beginning of lease and cannot contest it. (lien-interest in property). L has legal right to claim T’s property.

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iii. Security Deposit

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1. Lease provisions commonly require T to make a security deposit at time lease is executed to assure the T’s performance. L promises to return this money to the T at end of term if T has not breached any covenant.

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iv. Procedural Due Process

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1. When the government acts against an individual or the individual’s property, it must employ a process that is fair and not arbitrary. For example, you live in a government housing project and the manager terminates your lease with the argument that you are not eligible. As an “arm of the state” the government housing project manager must give you your due process rights. Due Process is governed by Amendment 14. T is entitled to notice, right to a prior hearing, right to a subsequent hearing, right to counsel, and right to cross examination. Must have state action to be entitled to procedural due process

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e. Hall v. Garson

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i. D acted as an arm of the state when he seized P’s property. Therefore, D was required to provide P with procedural due process as guaranteed by Amendment 14. Otherwise, D’s actions and the statute were unconstitutional.
ii. If L acts as the arm of the state—i.e. if he acts under the authority of a state statute, or is part of a government housing project, etc.—T is guaranteed to procedural due process. This reinforces the idea that courts do not favor self help.
iii. Today, Hall might be decided differently. Since the only state involvement was the authorizing statute, the ct. probably would have found state involvement too attenuated to warrant applying Amendment 14.

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c. Public Housing

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i. First generation program: Government owns and manages the public housing.
ii. Second generation program: Government provides subsidies to private landlords to build housing for low and moderate income tenants. (like in Joy)
iii. Third generation program: Tenants given housing vouchers with which they can seek housing on the private market. This is usually called “Section 8 housing.” Sometimes building new housing is subsidized too.

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d. Housing and Urban Development Act

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i. Sought to improve the living environment of urban dwellers. Implicit in the policy behind the act was an atmosphere of stability for low income tenants.
ii. The normal practice in subsidized housing is to permit tenants to remain beyond the expiration of a lease unless there is a reason for eviction. Eviction should be the exception at the end of a lease, and not the rule.
iii. Public housing tenant’s rights include: compelling a hearing before an impartial official or hearing panel, seeing evidence against him, cross examining witnesses, being represented by counsel, etc.

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i. Edwards v. Habib

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1. Amendment 14 does not apply here, since D was not acting as an arm of the state—he is a private landlord.
2. In this case there is a conflict between housing and sanitary code (remedial legislation) and summary process provision (procedural/mechanical).
3. If cts. allow landlords to have retaliatory eviction, this will frustrate the remedial purpose of the housing code. Implicit in the housing code, cts. must not allow retaliatory evictions. To enforce the housing code, you need tenants to report violations. If tenants are afraid they will be evicted because of their reports, they won’t report. Effectiveness of remedial legislation (designed to correct serious social problem here -Housing Code) will be inhibited if tenants are intimidated to report violations
4. Ct. wants to remedy the SOCIAL PROBLEM of slum housing w/ minimum standards. In light of the appalling condition and shortage of housing, expense in moving, inequality of bargaining power between T and L, and social and economic importance of assuring at least minimum standards, retaliatory eviction cannot be tolerated.

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ii. How long does defense of retaliatory eviction last?

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1. As long as the housing code violations remain. If the retaliatory purpose of eviction is dissipated—i.e., L remedies the housing code violations—L may evict T for legitimate reason. Suppose L gives several reasons for wanting to evict T, only one of which is retaliation. Can T successfully raise the defense of retaliatory eviction? This depends on the legitimacy of the other reasons. The court would have to weigh the policy concerns of allowing a retaliatory eviction against the policy concerns of protecting a landlord from a bad tenant.

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XIII. Landlord’s Monetary Remedies

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a. T wants to break the lease before the end of term. Offers “surrender”
b. Rules
i. If L refuses to accept surrender, the lease remains in force. T must pay unpaid back rent and reserved rental (future rent—what is left on the lease/what has not yet become due on the lease) as the payments become due. If T leaves the premises, and L refuses to accept surrender:
1. Common Law: (1) L can do nothing and demand the rent as it becomes due. L has no duty to mitigate by looking for new T. OR (2) L can decide to mitigate by seeking new T and subtracting new T’s rental payments from reserved rental that defaulting T owes. This is called reletting on the tenant’s account. L effectively acts as an agent for the defaulting T.
2. Trend of Law (Majority Rule): L has a duty to mitigate. L must try to find a new T. If L finds a new T, L may subtract new T’s rent from reserved rental that defaulting T owes.
ii. If L accepts surrender, the lease ends. L can sue for unpaid back rent, but not reserved rental. L can re-rent and keep the proceeds. L may also be able to sue defaulting T for damages.
c. Acceleration clause: If T defaults, L can decide to accelerate the rent. All future rent will be due at the time of default. If T remains on property, this clause seems okay. But, if T has abandoned property, and L enforces clause and gets a new T, clause looks like a penalty and will not be enforceable.

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i. Sommer v. Kridel

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1. That L should not let valuable rental space go un-rented, just because T wrongfully vacated apartment and L will be able to recover. Opposing argument is that lease conveys property interest to T, and L has no control over property. Therefore, L should not be forced to worry about T’s abandonment of his own property. Also, L owns property and he can let it go un-rented if he feels like it.
2. L’s obligation to mitigate is just that L has to make a reasonable effort to re-let the property; treat vacated apartment like other vacant apartments. L has burden of proof of reasonable effort. T does not have access to L’s records and it is easier for L to bear the burden of proof. (This is different from contracts where T would have burden of proving that L did not mitigate.)
3. Cts. favor finding that L accepted surrender over L renting on T’s account for two reasons: (1) if L can find a new T and cut his losses, it would be too harsh a result to allow L to also collect rent from defaulting T and (2) requiring L to act as an agent for defaulting T seems strange, involuntary and artificial.

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ii. Hermitage v. Levine

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1. The deficiencies would have to be ascertained at the end of the term of the lease. By refusing to accept D’s surrender of the property, P put himself in a position where he would have to wait out the term of the lease in order to determine his damages.
2. L must wait until the end of the lease term to sue for a default if he refuses to accept T’s surrender. L can avoid this inconvenience by putting an acceleration clause in the lease. When you rent on T’s account (rent to another T), cannot sue defaulting T for damages until entire lease period has gone by b/c won’t really know exactly how much he owes. The T will owe reserved rental minus what L can make off of new T, so this can’t be determined until the end of the leasehold.

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iii. Anticipatory Breach

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Contract remedy. On theory that when T communicates to L that he intends to repudiate the lease, T has caused an anticipatory breach, L may recover his damages at once. Damages are measured by the present value of the excess of the reserved rental over the rental value of the premises. Reserve rental minus rental value for the remainder of the term. Give L the benefit of the bargain.
1. Example: If reserve rental is $10,000 and reasonable rental value is $8,000, L’s damages are $2,000. But, if reserve rental is $10,000 and reasonable rental value is $10,000, L’s damages are $0. (Like a market value theory in contracts.)

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iv. Sagamore v. Wilcutt

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1. Ct. treats the lease as a unilateral contract. The covenant to pay rent at certain fixed periods is a contract for the payment of money in installments. Failure to pay any installment of rent as it falls due constitutes a partial breach of D’s contract. But here, where D repudiated the entire lease, P may treat D’s statement as a total breach. Therefore, P may recover damages which follow from the breach.
2. Choice to sue for damages under contract theory will depend on whether breaching T has money. If T has no money, L will probably be better off just accepting surrender and mitigating his damages.
3. If L wants to sue for damages under a contract theory (1) T must default and (2) T must repudiate the lease.

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e. Unconscionability of a lease as a defense

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i. Ct. will throw out the lease or a portion of the lease. This is a contract concept. Ct. will hold that there is a grossly unfair provision in the lease which makes the lease unenforceable. E.g. an exculpatory clause in the lease which prohibits T from suing L for any reason. Cts. can hold that provision in lease is contrary to public policy.
ii. Unconscionability is not a first line of defense—it is an innovative and drastic remedy. Cts. don’t like to tear up lease or a part of the lease. Ct. may rewrite provisions of the lease.
iii. In general, principles behind shying away from unconscionability as a defense also apply to fraud and estoppel as defenses. T can win on these, but they should not be T’s first line of defense.

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a. Tenant’s right to quiet enjoyment

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i. T’s right to quiet enjoyment is implicit in every lease. If L breaches covenant, the lease will either end or T’s duty to pay rent will be suspended. T has the choice. L can breach covenant by renting the same property to two Ts; by unlawfully evicting T; by defaulting on mortgage, forcing T to vacate property, etc.
ii. Under covenant of quiet enjoyment, T is protected against any interference with her use of the premises caused by L, agents of L, and someone who has title over the premises paramount to L.

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b. Actual Eviction

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i. Actual eviction is an actual expulsion of T out of all of the leased premises. T has no duty to pay rent in event of actual eviction. For example, if L defaults on his mortgage, and causes T to lose the right to live on the premises.

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c. Partial Actual Eviction

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i. T is wrongfully excluded from a portion of the premises. T has no duty to pay rent for any part of premises while partially evicted. T also does not have to vacate the habitable part of the premises.

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d. Smith v. McEnany

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i. When L leases property, L leases it as a whole. L cannot withdraw part of the property. T’s remedy is to stop paying rent. T is not required to vacate the property.

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e. Stewart v. Lawson

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i. L is not responsible for the acts of strangers. L has to cause the problem in order to breach covenant. Even if L allowed the disorderly conduct to persist, L did not actively encourage it.

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f. Phyfe v. Dale

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i. In this case, T wins because disorderly conduct took place in a common area under the control of L. If L does not control these areas, T can raise breach of covenant as a defense to not paying rent or terminating lease.

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g. Restatement Section 6.1

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L is responsible for the conduct of third parties if it takes place on property in which L has an interest, provided that L can legally control the conduct.

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h. Paramount Title

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i. “Paramount” means “superior.” A mortgagee—e.g. a bank—has paramount title to a mortgagor—e.g. a landlord whose property is burdened by a mortgage. Another example: L is a life tenant and leases to another person. Person who holds remainder interest has title paramount to the landlord.

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i. Fifth Avenue Building v. Kernochan

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i. With partial actual eviction resulting from someone with paramount title taking over their portion, rent will get apportioned. T pays rent based on value of property retained. Remedy for partial actual eviction differs depending whether the entity causing the eviction is L or the person with title paramount to L.

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j. Partial Actual Eviction using facts of Donnelly

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i. Suppose the lease contains a provision in which Mrs. Flaccomio promised not to rent her adjoining commercial property to an advertising company. Suppose she then rented it to Ajax Advertising Co. Could you characterize Mrs. Flaccomio’s conduct as breach of the covenant of quiet enjoyment? No. It does not amount to an actual or partial eviction of Donnelly.
ii. Suppose Mrs. Flaccomio needed to borrow money and took out a mortgage on the leased property. Who has paramount title—the mortgagee bank or the mortgagor, Mrs. Flaccomio? The mortgagee bank.
iii. Suppose Mrs. Flaccomio failed to pay the mortgage, and the bank foreclosed and then locked Donnelly Advertising out of the building. Would Donnelly Advertising owe any subsequent rent? No. Actual eviction by a party with paramount title results in total suspension of rent.

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k. Constructive Eviction

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i. Where, through the fault of L, there occurs a substantial interference with T’s use and enjoyment of the leased premises, so that T can no longer enjoy the premises as the parties contemplated, T may terminate the lease, vacate the premises, and be excused from further rent liability.
ii. Distinguish from actual eviction: Actual eviction requires physical expulsion or exclusion from possession. If landlord changes the locks or bars entry, the eviction is actual. However, if landlord interferes with enjoyment, but does not bar entry, the eviction is constructive.

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l. Barash v. Penna. Term. Real Estate

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i. L’s actions constitute a constructive eviction, since they only interfere with T’s enjoyment of the premises. T cannot stay in the office and refuse to pay rent. T may claim constructive eviction and not pay rent, but must also abandon the office space.

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m. Dyett v. Pendleton

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i. Has a duty not to permit a nuisance on the premises.
ii. Dissent argues that if you allow the defense of constructive eviction, you are opening up a Pandora’s box of litigation. It is too drastic of a remedy—may lead to sticky situations and slippery slope w/ T leaving for nuisances. Once you extend defense, how far will you take it? May lead to perpetual contentions and disagreement.
iii. Common Law
1. T must first abandon the premises with reasonable promptness. After T vacates premises he can sue L for damages suffered b/c of constructive eviction, including the difference b/t rent paid and reasonable rent value, expenses in obtaining substitute premises, etc.

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n. Partial Constructive Eviction

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i. East Haven Assoc. . Gurian
1. T could not argue constructive eviction as a defense, since CE requires that T abandon the premises. Here, T stayed in apartment for over a year after terrace first became unusable. T also could not argue actual eviction, since he had not been expelled or excluded from the property.
2. Ct. holds that when T stopped using the terrace, this was a partial constructive eviction. T may stay in usable part of apartment and withhold rent OR terminate lease.
3. Justification for allowing T to stay without paying rent:
a. Major shortage of decent residential housing in city.
b. T is in a difficult bargaining position. T wants to avoid risk of moving out, suing L for constructive eviction, losing and owing L back rent plus rent at new apartment.
c. Since T stayed in apartment for over a year with the unusable terrace, T probably can’t recover back rent that T paid. T essentially waived his right to leave; eviction is usually a defense and not an offense

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XV. Tenant’s Right to Habitable Premises

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a. Common Law
i. No implied warranty of fitness for use. L only had duty to not disturb T’s quiet enjoyment of the property for the length of the lease. Assumed T had the skills necessary to maintain and repair the premises. Could have an express warranty for habitable premises, but would have to write it in to the lease. The most important part of the lease was the property; the home was secondary.
ii. Today: Implied warranty of habitability in residential property. T no longer regards land as most important. Instead of renting land, T rents a “package of goods and services.” Package explicitly or implicitly includes an agreement that L will perform necessary maintenance and repairs. **Note, there is not always an implied warranty of habitability in a commercial lease. This is because of the bargaining power of L and T.

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b. Grade v. National Creamery

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i. Ct. held that where there is a short-term lease of a furnished house (such as a summer cottage) a covenant is implied that the premises are habitable. This is because T in such a situation has no time to inspect or put the premises in a habitable condition.

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ii. Possible reasons for short-term, furnished premises exception

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1. Cts. were discontented with rule where T assumes the risk of premises when he rents;
2. Short-term hirer of furnished premises has different expectations regarding the use of his unit than either a long-term hirer of furnished premises or any hirer of furnished premises, and that these expectations are more deserving of legal protection;
3. That a short-term T should not be expected to make either the cash or sweat outlay for repairs that will benefit him only briefly;
4. That a short-term hirer of furnished premises has less opportunity to make a prior inspection; and
5. That a short-term T of furnished premises is easy prey to unconscionable Ls.

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c. Javins v. First National Realty Corp.

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i. T defaulted on paying rent, citing numerous violations of the Housing Regulations code as an equitable defense. Held that the Housing Regulations imply a warranty of habitability.
ii. Ct. holds that common law “no-repair” rule cannot coexist with the obligations imposed on L by the housing code. Common law rule must be abandoned in favor of an implied warranty of habitability.
iii. Urban tenants do not have an interest in the land; they have an interest in the building. Urban tenants are interested in “a house suitable for occupation.”
iv. Urban tenant’s tenure in an apartment will often not be long enough to justify making repairs.
v. Ct. uses a contract theory and states that since a lease specifies a particular period of time during which the tenant has a right to use his apartment for shelter, he may legitimately expect that the apartment will be habitable for the time period for which it is rented.

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vi. Two questions jury must consider:

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1. Whether the alleged Housing Code violations existed for the period during which L is claiming back rent; and
2. What portion, if any or all, of T’s obligation to pay rent was suspended by L’s breach? **Note, one or two minor violations standing alone which do not affect the habitability of the premises would not entitle T to a reduction in rent.**

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vii. Rule: In most states, L has a duty of delivering habitable premises and of maintaining them in habitable shape.

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1. Consider the nature of the breach. A couple of small violations would not be enough to allow T to suspend rent.
2. Consider the jurisdiction—does jurisdiction have a housing code?
3. T should pay the fair market value of the premise as they are if there is partial breach.
4. How do you prove what the value of the property is if it doesn’t even meet minimum standards? Cts. usually come up with an arbitrary rental value.
5. T may suspend rent if there is a total breach until L repairs premises.

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viii. Hypothetical:

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T rents from L in an urban setting. T’s lease states that T should have a working air conditioner in the apartment. The Housing Code says nothing about air conditioners. May T claim a Javits remedy if there is no working air conditioner?
1. No. Implied warranty of habitability does not apply here, since air conditioners are not in the code. It would have a devastating effect on L’s finances to have to fix all of the air conditioners in the building.

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XVI. Repair and Offset: Landlord’s Tort Liability

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a. Common Law
i. L had no duty to maintain and repair the premises. T expected to be able to make repairs on premises. Important part of the lease was the land. Only if there was an express provision in the lease would L have to repair.
b. Landlord’s Covenant to Repair
i. Even where there is an express agreement to place the duty to repair on L, L’s covenant to repair is deemed independent of T’s duty to pay rent. Therefore, if L fails to repair, breach does not excuse T from rent payments. T’s only remedy is to sue L for breach or specific performance (contract remedies).

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c. Tenant’s Right to Offset Cost of Repairs Against Rent

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i. Marini v. Ireland
1. Ct. looks to terms of lease. Lease describes premises and restricts use of premises to “dwelling.” Ct. states that L impliedly represented in the lease that the premises were habitable; therefore, L should be held to an implied covenant of habitability. This means that premises will remain in usable condition during the term of the lease—i.e., L is required to maintain the premises in a condition which renders them livable.
2. Ct. states that failure to maintain the premises would constitute a constructive eviction. In Javits, ct. used a contract theory to determine the remedy, but here ct. is using “property words” to show what they are doing. This ct. takes property law and extends it to create a new remedy for T. If this were a contracts case for specific performance, ct. would order L to fix the problem. Here, T can just use self help.
3. Rule for breach of duty to repair: If T notifies L of need for repair, and gives L time to remedy problem, and L does not remedy problem, T may make repair and offset rent against cost of repair. **Note, self-help remedy like this will not come up often.**
4. Self-help remedy applies when the facilities needing repair are vital—necessary to maintain the premises; repairs need to be made right away. Must give L timely and adequate notice. Subtract cost of repairs from rent. There is a concern with self-help that T may abuse his discretion.

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ii. Landlord’s Tort Liability

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1. Common Law
a. L responsible for injuries resulting from dangerous conditions in the premises if injury was attributable to latent defects in premises; where parts of the premises were under L’s control—like the common stairways; or where premises were negligently repaired by L.
b. Common law, L was not liable for criminal acts of third parties not under L’s control. Therefore, if T got injured by a third party in building, L was not responsible.
c. Kline v. 1500 Mass. Ave. helped to change L’s responsibility for criminal acts of third parties in common areas of building. In this case, Kline was assaulted and robbed in the common hallway of her building. Ct. held that there was an implied obligation in the lease between L and T to provide protective measures which were within L’s reasonable capacity. Implied obligation created a special relationship between L and T.
d. In Kwaitkowski v. Superior Trading Co., L was held liable when T was raped, assaulted and robbed in the dimly lit lobby of a building with a defective front door lock in a high crime area, since L had had notice of similar and other crimes committed on another T in a common hallway. Ct. looked to special relationship between L and T; foreseeability of criminal attack; and warranty of habitability in the lease.
e. L must provide safeguards against foreseeable criminal activity on premises—this is a tort/ implied warranty theory of recovery for T.

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a. Tenancy in Common

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i. A tenancy in common is a form of concurrent ownership wherein each co-tenant is the owner of a separate and distinct share of the property, which has not been divided among the co-tenants. Each owner has a separate undivided interest in the whole. Each tenant in common has the right to possess and enjoy the entire property, subject to the same right in each co-tenant.
1. There is no right of survivorship with a tenancy in common. When a tenant in common dies, her interest passes to her devisees or heirs. It does not go to the surviving tenant(s) in common. This is the main difference between a tenancy in common and a joint tenancy.
2. Equal shares of the property are not necessary. A and B can be co-tenants, with A holding a ¾ interest and B holding a ¼ interest.
3. Same estates are not necessary. Suppose A and B are tenants in common, and that A dies, granting her half interest to C for life, remainder to D. C now holds a life estate, and D holds a remainder in a ½ interest held in a tenancy in common with B.

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b. Joint Tenancy

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i. A joint tenancy is a form of concurrent ownership wherein each co-tenant owns an undivided share of property and the surviving co-tenant has the right to the whole estate. The right of survivorship is the distinctive feature of the joint tenancy. When one joint tenant dies, the surviving tenant gets 100% interest in the estate.
ii. Four Unities Requirement: Since joint tenants are seised of the undivided property as one fictitious entity, the common law requires that their interest be equal in all respects. Therefore, the four unities must be present to create a joint tenancy at common law:
1. Unity of Time: Interest of each joint tenant must vest at the same time.
2. Unity of Title: All joint tenants must acquire title by the same deed or will. One person may not convey to himself. If A wants to convey property to himself and B as joint tenants, A may convey to a “straw person” (usually a lawyer). After A conveys to the straw person, the straw person conveys “to A and B as joint tenants.”
3. Unity of Interest: The interest of each joint tenant must be equal. Therefore, A and B must have the same amount of interest (e.g. ½ each) and the same type of interest (both must be life tenants, or both must hold the property in fee simple, etc.).
4. Unity of Possession: Requires that each joint tenant have a right to possession of the whole property. After a joint tenancy is created, the joint tenants can agree that one joint tenant has the exclusive right to possession.
iii. Joint tenant can turn interest into tenancy in common by selling his share of the property to someone else. Joint tenancy is very fragile, and either party can destroy it by unilateral action.

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c. Gagnon v. Pronovost

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i. Here the ct. was clearly hostile to joint tenancies and chose to construe the language of the deed very narrowly. Dissent argued that the intent of the grantor was reasonably clear, and that the majority was being too formalistic in its approach.
ii. If the purpose of the statute was to create hostility toward joint tenancy—make it very difficult to create a joint tenancy—then the majority was right in their holding. However, if the purpose of the statute was just to deal with ambiguities, then the dissent was probably right.

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d. Hass v. Hass

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i. Ct. wanted to enforce this deed, so ct. found a tenancy in common with right of survivorship—survivor would take the remainder in fee simple. Holdings like Hass are pretty rare. For example, in Moe v. Krupke, Emil Moe deeded his farm to himself and his sister Emma as joint tenants. Emma died before Emil, and Emil, relying on Hass, argued for a survivorship interest. Ct. limited Hass to its facts. Emil and Emma were not as sympathetic as Bertha and Herbert. For instance, before deeding the farm, Emil owed Emma $10,000. Emma forgave the debt in exchange for an interest in the farm. If ct. had found a tenancy in common with right of survivorship in Moe, Emil would have has a windfall, since he would have gotten rid of his debt and kept the farm.
ii. Bertha could have avoided problems by deeding property to a straw person, then having the straw person deed to Bertha and Herbert as joint tenants.

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XIX. Statutory Construction- Rules of construction/guideline of interpretation

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a. Under common law, the ct. would have only found a tenancy in common, with no right of survivorship, since the four unities were not satisfied.
b. In Hass, there were two controlling statutes:
i. Statute Section 2: Any deed from a husband to a wife or from a wife to a husband which conveys an interest in the grantor’s lands and by its terms evinces an intent on the part of the grantor to create a joint tenancy…husband and wife shall hold the premises as joint tenants.
ii. Statute Section 3: Any deed to two or more grantees, which by the language evinces an intent to create a joint tenancy…shall be held to create such joint tenancy.
1. Statute Section 2 did not work because H and B were not husband and wife. According to the statute, in marital situations, ct. would not have to consider four unities.
2. Statute Section 3 did not work because B was a grantor, so she could not also be a grantee. B could not grant to herself and H; otherwise, Statute Section 2 would be meaningless.
c. “Canons.” Presumption is that the legislature does not write superfluous laws. Therefore, every word has meaning. However, you can just as easily find another canon that states that it may be possible for the legislature to write superfluous provisions.
i. Canons are very general, and not always a lot of help. You can find a contradicting canon usually for each canon.
ii. Don’t start legal analysis with a canon—end with a canon as a matter of advocacy.

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d. Judicial Realism

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i. Ct. tries to do justice, but sometimes can’t do the right thing if statutes or precedent prevents it. Ct. tries to interpret law to circumvent these roadblocks. Ct. also tries to make arguments that are consistent with the status quo. Sometimes ct. will confront precedent and say that decisions were wrong—but only a higher ct. can do this, and they don’t like to do this.

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XX. Tenancy by the Entirety

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a. In half the states and in D.C., husband and wife may jointly acquire property as “tenants by the entirety.” Tenancy by the Entirety is a concurrent estate that only a husband and wife can hold.
b. Tenancy by the Entirety is like a joint tenancy in that it features a right of survivorship in the decedent’s spouse from the beginning of the tenancy and in many states the four unities are necessary for its creation.
c. Cotenants must be married to each other at the time of the grant.
d. Divorce automatically terminates a tenancy by the entirety—unless there is another agreement, divorced couple will become tenants in common.
e. Tenancy by the Entirety can only be destroyed by the spouses’ combined action or the marriage’s end. Tenancy may not be destroyed unilaterally by one spouse.
f. At common law, conveyance to a married couple was presumed to be a tenancy by the entirety, since the husband and wife were only “one person in the law.” In a tenancy by the entirety, husband and wife are viewed as a single entity. The single entity holds the entire property.
g. If there is an attempted tenancy by the entirety, most cts. will treat this as a tenancy in common. Cts. sometimes find a joint tenancy.
h. Effect of separation upon a tenancy by the entirety: In some circumstances, in a separation, a couple will not participate in the management of the tenancy. Neither can sell or mortgage the premises without the other’s consent and sometimes the other could not be found. Should an equity ct. exercise its power to order partition?
i. Is the blameworthiness of one spouse imputed to other? H and W are tenants by the entirety. H deliberately sets fire to the real estate. W is an innocent party. Insurance company refuses to pay either spouse, arguing that the fraudulent acts of H are imputed to W as if they were one entity. Cts. come out both ways in these situations.
j. Traditionally, tenancy by the entirety functioned to protect the family home from the creditors of either spouse. Creditor can’t get money from H/W if he/she has debt—can’t collect money from the tenancy.
i. If A has debts and owns property, and creditor wants to sue, creditor may sue and get judgment. Creditor may also track down property and get a lien on it. Can sell the property at a sheriff’s sale—from proceeds, satisfy debt. Put a “levy” on the property and force the sale.
ii. If A has debts and owns property with B in common, creditor may only collect on A’s share.
iii. If A has debts and owns property with B as joint tenants, creditor may go after property, break four unities, and convert into a tenancy in common after creditor gets share. Creditor may go after some/all of A’s property.
iv. If A has debts and owns property with B as tenants by the entirety, under classic common law, creditor may not go after A’s share. If A and B have a joint debt, creditor may go after whole property. So, if you are a creditor lending to A as a tenant by the entirety, you would ask B to sign loan too, so if A defaults, you may go after property.

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k. Married Women’s Property Act

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i. Prior to the Act, the husband controlled all the property of the wife—including property she brought into the marriage and property held by both husband and wife concurrently. There was one exception. The husband could not transfer the wife’s survivorship interest in a tenancy by the entirety.

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l. Married Woman’s Act (equalized property rights) – Married women have same property rights as single women

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i. Neither can alienate her/his share of tenancy by entirety; or
ii. Both can alienate their share of tenancy by entirety (Greene); or
iii. Tenancy by entirety is abolished as part of old regime (b/c it protected family assets/interest(s) by assuming that husband and wife had the same interest(s); or
iv. W has same rights as single females; but single females cannot hold tenancy by entirety so she has no new rights.
v. Many states have made additional inroads to get around tenancy by the entirety.
m. Homestead Exceptions: Creditor can’t go after home if you are bankrupt. Sometimes run into trouble if people can’t use their home to settle their debts.

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a. Partition

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If A and B are co-tenants and have a falling out, either co-tenant may sue the other co-tenant for partition and obtain a decree ending the co-tenancy. Partition is available as a remedy for joint tenants and tenants in common but not for tenants by the entirety. Partition can almost always be forced on joint tenants and tenants in common whenever any concurrent owner wants to split the land up or force a sale of the land, even in a situation where the other owner or owners want to continue the concurrent ownership. Cotenants may by agreement restrict their right to partition.

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b. Partition in kind

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Ct. orders division of the property—e.g. if A and B own 100 acres of farmland as cotenants, the ct. divides the farm into two parts, each representing the value of A and B’s co-tenancy interest. Cts. favor partition in kind, but in practice it is difficult to carry out. For instance, if there is a house on the property, how will ct. divide the house in half? Would two people who don’t get along really want to share a house?

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c. Partition by sale

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Ct. orders a sheriff’s sale of the property and divides the sale proceeds between the cotenants.

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d. Action for contribution

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One co-tenant lives on the property. The other co-tenant moved off of the property. Resident co-tenant (tenant in possession) brings an action for contribution—to the mortgage, taxes, etc. Depending on the jurisdiction, resident co-tenant may only be able to bring action for certain things.

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e. Action for an accounting

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Tenant not in possession is most likely to bring such an action. Action for money generated by rental value—mesne (share of rental value) profits. Majority Rule – the tenant in possession must prove an ouster to get an accounting (heavy burden).

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f. Statute of Anne

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One party in tenancy in common leases premises to a third party and represents that the third party has the right to exclusive possession. With respect to rent paid by third parties, collected by one co-tenant, the other co-tenants are entitled to an accounting

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g. Newman v. Chase

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i. In NJ, one spouse may unilaterally convey his or her interest in a tenancy by the entirety to a third party, and the third party will receive a tenancy in common with the other spouse for the life of the marriage as well as the spouse’s survivorship right.
ii. What was Newman seeking to partition? Here Mr. and Mrs. Chase had a tenancy by the entirety. There had been no mutual agreement to break the tenancy, nor was there a divorce, therefore the tenancy was still ongoing. If Mr. Chase lived longer than Mrs. Chase, Mr. Newman or his estate would get everything. If Mrs. Chase lived the longest, she would get everything.
iii. This is just the law in NJ and not in PA. PA has traditional notion of tenancy by the entirety—one tenant can’t break off part of their share to settle debt.

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h. Seeholtz v. Beers

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i. Statute mandated that Charles would have had to oust Elizabeth from the property in order for Elizabeth to get an accounting—MAJORITY RULE.
ii. Requirement of an “ousting” in order to have an action for accounting places a heavy burden on the tenant not in possession.
iii. If ct. had granted an action for accounting, Charles would have had to account for the reasonable rental value of the property only. He would not have to account for any of his own entrepreneurial profits.

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i. Cohen v. Cohen

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i. Ct. required Lena to account for the reasonable rental value of her entire occupancy, relying on an OH statute that allowed one tenant in common to recover from another tenant in common his shares of the rents and profits received by the tenant in common from the estate. MINORITY RULE.
ii. Minority rule—tenant in possession must prove that he has an agreement with tenant not in possession to not pay rent. Heavy burden on tenant in possession.

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j. Rules for contribution and accounting vary from state to state. Therefore the following rules apply for exam purposes:

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i. A cotenant out of possession must share necessary expenses, whether or not the cotenant has been ousted. Examples: essential repairs to the roof, the principal component of the mortgage payment.
ii. A cotenant out of possession has no obligation to contribute to unnecessary improvements. Upon partition, however, the cotenant who paid for the improvements receives credit to the extent that the improvements increased the property’s fair market value.

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k. Cotenant’s Duty to Another Cotenant

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Cotenants have a high degree of duty toward one another that approximates a fiduciary duty. To have a fiduciary duty means that you must act in good faith and in the best interests of the other party.

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XXII. Marital Proprietary Interests

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a. Rights at death
i. Dower – (gave wife some protection) When husband dies, wife gets life estate on 1/3 of real property of husband that he had at any time during the marriage.
ii. Curtesy – At the birth of live issue, husband would get life estate.
iii. Modern alternatives—goal is to keep surviving spouse from being left empty-handed. If spouse cuts other spouse out of the will or leaves her very little, states have statute of Forced share, Spouse’s election and Spouse’s share
1. Use will OR
2. Forego will and get share (usually 1/3- e.g. in PA) for surviving assets
b. Rights at divorce
i. Community property estate – statute that allows spouse to get ½ property.
ii. Gay/Lesbian – not covered by tenancy by entirety or equitable distribution. Create a trust to ensure beneficiary of surviving partner OR transfer the land before death.
iii. Equitable Distribution – Property is divided by court according to principles of equity or fairness, not according to legal title (traditional view).
1. Questions: (1) What property is subject to equitable distribution? (2) How are you going to divide the property? Determined by state statute.
2. Marital property is all property acquired during marriage, varies by state, can be interpreted broadly (New York). Elkins v. Elkins. (e.g. professional degrees and operatic careers, in NY.) NY is the only state that takes a degree and treats it as marital property.
3. Martinez v. Martinez – Whether or not to create equitable restitution for a wife who raises family while husband puts himself through medical school. The court says that the statute doesn’t allow for equitable restitution, and that increasing her alimony would help to accommodate her. Equitable distribution would grant her a percentage of all future income. The court found this to be too difficult to determine. They allowed for an alternative remedy of alimony.
4. Bold v. Bold – CAREER THRESHOLD CASE (current last word on this type of case) Is there equitable reimbursement when one party is unjustly enriched by enhanced earning capacity as a result of the other party’s contribution? The court says that wife is entitled to equitable reimbursement to the extent that her contribution to her husband’s education exceeds the bare minimum required by law. I.e. If she bought his books, she gets money for books, if she paid tuition she gets tuition money. Alimony is infrequent and when granted, it is very little.
a. Dissent is typical of a court that does not recognize equitable reimbursement b/c:
i. It is not in line with the statute
ii. There is no property in a career
iii. Marriage is not a financial investment that can be divided later. All court can do is to divide equitably and give alimony when needed.
iv. ***Reality is that alimony and equitable distribution are often inadequate***