What can a person who holds property in fee simple do with the property? Can a person who holds property as a life estate do the same?
How can a ownership rights in real property be transferred?
What are the respective duties of the landlord and tenant concerning the use and maintenance of leased property? Is the tenant responsible for all damages that he or she causes?
What is contained in an environmental impact statement and who must file one?
What major federal statutes regulate air and water pollution? What is Superfund, and who is potentially liable under Superfund?
Nature of Real Property
Real property is immovable and includes:
Plant Life and Vegetation.
Subsurface (mineral) rights.
A fixture is personal property that becomes permanently affixed to real property.
Intent that it become a fixture is necessary.
Intent is determined by:
The fact that the property cannot be removed without causing damage to the realty.
The fact that the property is so adapted to the realty that it has become part of the realty.
In re Sand & Sage Farm & Ranch, Inc. (2001).
Trade fixtures: installed for commercial purposes by a tenant.
They remain the property of the tenant and can be removed when tenant leaves, repairing any damage caused by removal.
Ownership Interests in Real Property
Ownership interests are classified as either Possessory or Non-Possessory:
A Possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess the land.
A Nonpossessory interest such as an easement, profit or license, does not give the owner a right to possess the land.
Ownership in Fee Simple
The Fee Simple (sometimes called fee simple absolute) gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs.
A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the Grantor and B is the Grantee .
Fee Simple Defeasible: grants conditional ownership to Grantee as long as he complies with condition. “A to B as long as ….”
Estate that lasts for the life of some specified individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.
When B dies, Blackacre returns to A or his heirs or assigns, or a third party in the same condition, normal wear and tear excepted.
Grantor A retains a “future interest” in the property.
During B’s life, she can possess, use, and take the fruits of the estate, but not take from the property itself.
An easement is a right of a person to make limited use of another person's real property without taking anything from the property.
A profit is the right to go onto land in possession of another and take away some part of the land itself or some product of the land.
Property that is benefited by easement/profit carries the the interest with the sale of land.
Transfer of Ownership
Ownership in real property can be transferred by:
A written Deed.
A Deed is the instrument setting forth the interests in real property being transferred.
Necessary components of a Deed:
Names of Grantor and Grantee.
Words evidencing intent to convey.
Legally sufficient description of the land.
Delivery of the Deed.
Types of Deeds
Special Warranty Deed.
Period of redemption.
Recording a deed ( or any interest in real property ) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.
Pure notice statute.
Will or Inheritance
Owner of real property dies, his property is transferred by:
Without Will (intestate).
Title is transferred at the time state law so provides in its testate and intestate laws.
One person possesses the property of another for a certain statutory period of time, that person automatically acquires title to the land, just as if there had been a conveyance by deed. Must be:
Actual and exclusive.
Open, visible and notorious.
Continuous and peaceable.
Hostile and adverse.
Rights in property are not absolute. They are constrained by federal and state laws, e.g., nuisance, tax and environmental.
A “Taking” By Eminent Domain : The 5 th amendment gives the government the right to “take” private land for public use with just compensation.
Anyone who rents housing to the public for commercial purposes subjects herself to various state and federal Landlord-Tenant laws.
Owner of the property is the LESSOR and Tenant is LESSEE; the contract is called the LEASE. The property interest is called a leasehold estate.
Tenancy for Years.
Created by an express contract.
Property is leased for a specified period of time.
Does not specify how long lease lasts.
But rent paid at certain intervals.
Tenancy at Will.
For as long as both agree.
Tenancy at Sufferance.
Wrongful possession without the right to possess.
Lease Agreement can be oral or written (oral may not be enforceable). Lease gives Tenant the temporary right to exclusively possess the property.
Sources of Law:
State and Local Statutes, and
The Uniform Residential Landlord and Tenant Act (URLTA) which has been adopted by 1/4 of the states.
Form of the Lease:
Must express intent to establish the lease.
Provide for transfer of possession to the Tenant.
Provide for the Landlord’s “reversionary” interest.
Describe the property.
Indicate length of the term, amount of rent, when and where rent paid.
Osborn v. Kellogg (1996).
Trend in the law is to curtail, by contract and real estate law, the immense freedom that Landlords had in the past.
Using the Premises.
Maintaining the Premises.
Rights and Duties
Rights and Duties
Landlord has a duty to deliver actual physical possession under URLTA or legal right to possession (“American” rule).
Tenant’s right to exclusive possession is only subject to Landlord’s limited right to come unto the property.
Tenant has a “covenant of quiet enjoyment” by which Landlord promises Tenant’s peace and enjoyment of the property.
Rights and Duties
Eviction occurs when Landlord:
Deprives Tenant of possession of the leased property; or
Interferes with this use or enjoyment of the property to the extent that Tenant cannot use or enjoy.
Constructive eviction occurs when Landlord:
Breaches lease or covenant or quiet enjoyment; and
Makes it impossible for the Tenant to use and enjoy the property.
Residential property -- Landlord must furnish premises in habitable condition.
Landlord is responsible for maintaining common areas such as stairs, parking lots, elevators and swimming pools.
Commercial property -- may still require Tenant to maintain depending on the lease.
Rights and Duties
Rights and Duties
Implied Warranty of Habitability applies to major (substantial) defects if Landlord knew or should have known about & he had a reasonable time to repair.
To determine breach, Courts consider:
Whether Tenant caused damage.
How long defect existed and age of building.
Defects impact on Tenant’s safety and health.
Whether defect contravenes relevant statutes.
Rent is Tenant’s payment to the Landlord for the Tenant’s occupancy or use of the Landlord’s real property.
Payment based on agreement, custom, state statute, waiver.
A deposit by Tenant which Landlord may retain for non-payment of rent or damage to premises.
URLTA has specific provisions as to when it may be kept and when it must be returned.
If Landlord breaches the warranty of habitability, depending on state law, Tenant may:
Withhold rent -- put in escrow.
Repair and Deduct -- notify, repair, and deduct repair from rent.
Cancel the Lease -- must be constructive eviction or breach of habitability.
Sue for Damages -- difference between what paid for and what received.
Transferring Rights to Leased Property
Transferring Landlord's Interest.
Landlord may sell any and all of his rights in the real property.
New owner buys “subject to the lease,” if lease is recorded.
Transferring Tenant’s Interest.
Landlord’s consent may or may not be required by statute or the lease itself.
Transferring the Tenant’s Interest ( cont’d )
Assignments: Tenant transfers his entire interest in the lease to a third person. Original Tenant is not released from liability under the lease.
Subleases: Tenant transfers all or part of his interest in the lease for a shorter period of time than the lease. Original Tenant is not relieved of liability under the lease.
The principal sources of environmental law are:
State and Local Regulation.
State and Local Regulation
States regulate the degree to which the environment may be polluted.
City, county, and other local governments control some aspects of the environment.
Local zoning laws.
Methods of waste and garbage removal.
Location and conditions of parks, streets and other public areas.
Federal environmental policy is achieved through federal agencies: