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Chapter 24



Real Property

Real Property



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    Chapter 24 Chapter 24 Presentation Transcript

    • 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?
      • What major federal statutes regulate air and water pollution? What is Superfund, and who is potentially liable under Superfund?
      Learning Objectives
    • Nature of Real Property
      • Real property is immovable and includes:
        • Land.
        • Buildings.
        • Airspace.
        • Plant Life and Vegetation.
        • Subsurface (mineral) rights.
        • Fixtures  .
    • Fixtures
      • 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).
    • 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.
      • Property that is benefited by easement/profit carries the the interest with the sale of land.
      Non-Possessory Interests
    • Transfer of Ownership
      • Ownership in real property can be transferred by:
        • A written Deed.
        • A Gift.
        • A Sale.
        • An Inheritance.
        • Adverse Possession.
        • Eminent Domain.
    • 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.
        • Grantor’s signature.
        • Delivery of the Deed.
    • Types of Deeds
      • Warranty Deed.
        • Special Warranty Deed.
      • Quitclaim Deed.
      • Grant Deed.
      • Sheriff’s 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.
      • Race statute.
        • Pure notice statute.
        • Notice-race statute.
      Recording Statutes
    • Will or Inheritance
      • Owner of real property dies, his property is transferred by:
        • Will (testate).
        • 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:
          • Actual and exclusive.
          • Open, visible and notorious.
          • Continuous and peaceable.
          • Hostile and adverse.
    • 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
      • Tenancy for Years.
        • Created by an express contract.
        • Property is leased for a specified period of time.
      • Periodic Tenancy.
        • 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:
        • Common Law.
        • State and Local Statutes, and
        • The Uniform Residential Landlord and Tenant Act (URLTA) which has been adopted by 1/4 of the states.
      Landlord-Tenant Relationships
    • Lease Agreement
      • 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.
        • Illegality.
          • 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.
        • Possession.
        • Using the Premises.
        • Maintaining the Premises.
        • Rent.
      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.
      • Security Deposits.
        • 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.
      Tenant’s Remedies
    • 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.
      Transferring Rights
    • Environmental Law
      • The principal sources of environmental law are:
        • State and Local Regulation.
        • Federal 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 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
      • An EIS must analyze:
        • 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
      • Clean Air Act .
        • 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
      • Noise Control Act.
        • 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.
        • Require special labeling, limit the use of substance, set production quotas, or prohibit the use of a substance altogether.
      Toxic Chemicals
    • 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.
      • CERCLA.
        • 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).