Dec 24, 2006
CHAPTER 24 Real Property and Environmental Law
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? Learning Objectives
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.
Fixtures A fixture is personal property that becomes permanently affixed to real property. Intent that it become a fixture is necessary. 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).
Fixtures 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 ….”
Life Estates 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. Non-Possessory Interests
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:
Deeds 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.
Types of Deeds
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.
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.
Adverse Possession 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: Open, visible and notorious.
Continuous and peaceable.
Eminent Domain 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.
Leasehold Estates 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 Interests 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. For as long as both agree.
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. State and Local Statutes, and Landlord-Tenant Relationships
The Uniform Residential Landlord and Tenant Act (URLTA) which has been adopted by 1/4 of the states.
Lease Agreement Must express intent to establish the lease. Provide for transfer of possession to the Tenant. Provide for the Landlord’s “reversionary” interest. 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. Rights and Duties
Maintaining the Premises.
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. Rights and Duties
Commercial property -- may still require Tenant to maintain depending on the lease.
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. Rent
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. Tenant’s Remedies
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. Transferring Rights
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.
Environmental Law 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. Methods of waste and garbage removal.
Location and conditions of parks, streets and other public areas.
Federal Regulation Federal environmental policy is achieved through federal agencies: Example: Environmental Protection Agency [ http://www.epa.gov ] (EPA).
Regulatory agencies must take environmental factors into consideration when making significant decisions.
Federal Regulation National Environmental Policy Act (NEPA). Does not directly deal with pollution control. Require preparation of an environmental impact statement (EIS) when major federal action in the environment is to be undertaken.
Media Specific Pollution Control Legislation.
Environmental Impact Statement The impact of the proposed action on the environment. Any adverse effects of the action and alternatives to the action.
Any irreversible effects the action might generate.
Air Pollution This act provides the basis for issuing regulations to control pollution coming primarily from stationary (factories) and mobile (cars) sources of air pollution.
It prescribes the use of pollution control equipment that represents the maximum achievable control technology.
Air Pollution Clean Air Markets Group v. Pataki (2002). Hazardous Air Pollutants.
Violations: civil penalties up to $25,000/day. Willful violations carry criminal penalties and fines.
Water Pollution Clean Water Act’s goals : Safe swimming and drinking water. Protection of fish and wildlife (wetlands). Elimination of the discharge of pollutants into waterways (navigable waterways).
Pollution control is largely achieved through the use of the best available control technology.
Noise Pollution Establishes noise emissions standards (maximum noise levels below which no harmful effects occur from interference with speech or other activity).
Prohibits distributing products manufactured in violation of the noise emission standards.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Regulates the use of pest control chemicals in the process of food growth to food packaging, to minimize their presence in foods consumed. Toxic Substances Control Act. Requires anyone planning to use chemicals first determine their effect on human health and the environment. Toxic Chemicals
Require special labeling, limit the use of substance, set production quotas, or prohibit the use of a substance altogether.
Hazardous Waste Disposal Resource Conservation and Recovery Act. Authorizes the EPA to issue regulations for the monitoring, transporting, storage, treatment, and disposal of hazardous substances. Designed to ensure the clean-up of hazardous waste sites and to assign liability for the costs of the cleanup operations.
Joint and Several Liability for cleanup costs can be assigned to any potentially responsible party (PRP).