Chapter 28: Real Property and Landlord-Tenant Law

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Chapter 1: Legal EthicsCHAPTER 28: REAL

PROPERTY ANDLANDLORD-TENANT LAW

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Learning Objectives1. What can a person who holds

property in fee simple absolute do with the property?

2. What are the requirements for acquiring property by adverse possession?

3. What limitations may be imposed on the rights of property owners?


Learning Objectives4. What is a leasehold estate? What

types of leasehold estates, or tenancies, can be created when real property is leased?

5. What are the respective duties of the landlord and tenant concerning the use and maintenance of leased property?

© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Nature of Real Property• Real property is immovable and includes: – Land and Structures: land includes the soil, and all

natural and artificial structures on it (unless agreed otherwise).

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The Nature of Real Property• Real property is immovable and includes

(cont’d): – Airspace and Subsurface Rights: subsurface rights

can be titled and sold separately.– Plant Life and Vegetation: crops can be sold

separately.

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The Nature of Real Property• Real property is immovable and includes

(cont’d): – Fixtures. Personal property that is intended to be

permanently attached to real property.• CASE 28.1 APL Limited v. State of Washington

Department of Revenue (2010). What was the parties’ intent regarding the crane?

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Ownership and OtherInterests in Real Property

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Ownership interests are either Possessory or Non-Possessory:– Possessory interests (fee simple, life or

leasehold estate) give the owner a right to possess the land. – Nonpossessory interests (easement,

profit or license) do not give the owner a right to possess the land.



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Ownership in Fee Simple.–Absolute gives the owner the greatest

aggregation of rights, powers and privileges possible under American law.–Owner has indefinite right to exclusive

possession and use of property.


• Life Estates.– Estate that lasts for the life of some specified

individual. – During life tenant’s ownership, she can possess,

use, and take the fruits of the estate, but not take from the property itself.


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Nonpossessory Interests.–Easement: right of a person to make

limited use of another person's real property without taking anything from the property. –Profit: right to go onto another’s land

and take away some part of the land itself or some product of the land.



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Nonpossessory Interests (cont’d):–Easement or Profit Appurtenant: owner

of property (dominant) has right to go onto adjacent property (servient). Easement goes with the land at sale or transfer.



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Nonpossessory Interests (cont’d).–Easement or Profit in Gross: right to go

onto non-adjacent property by business or utility company. Easement goes with the land at sale or transfer.



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Nonpossessory Interests (cont’d).–Creation of an Easement or Profit:•Must be in writing created by deed,

contract, or will. • Can be created by implication.• Can be created by necessity.• Can be created by prescription.



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Nonpossessory Interests (cont’d).–Termination of an Easement or Profit.–License: revocable right of a person to

come onto other person’s land. Grants no interest in the land.


Transfer of Ownership

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Real Estate Sales Contracts: must be in writing and signed, to be enforceable under the Statute of Frauds. –Contingencies.–Closing Date and Escrow.–Implied Warranty of Habitability.–Seller’s Duty to Disclose Hidden Defects.



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Deeds--written instruments setting forth the interests in real property being transferred.

Necessary components:–Names of Grantor and Grantee.–Words evidencing intent to convey. –Legally sufficient description of the land.



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Deeds. –Grantor’s Signature.–Delivery of the Deed.



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Deeds:–Warranty Deeds.–Special Warranty Deed.–Quitclaim Deed.–Grant Deed.–Sheriff’s Deed.



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Deeds:–Recording Statutes. • 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.



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Deeds:–Recording Statutes. •Marketable Title: grantor is obligated to

transfer title that is free from encumbrances and defects.• Title Search.•Methods of Insuring Good Title: most

common is title insurance.



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Adverse Possession.–Occurs when 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.



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Adverse Possession: (cont’d).–Must be:• Actual and exclusive.• Open, visible and notorious.• Continuous and peaceable.• Hostile and adverse.

–CASE 28.2 SCARBOROUGH V. ROLLINS (2010). What was the key factor in Rollins’ proof of title to the land?



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Eminent Domain.–The Fifth Amendment gives the

government the right to take (condemn) private land for “public use” with just compensation to owner.• CASE 28.3 TOWN OF MIDLAND V. MORRIS

(2011). Is taking private land for a pipeline development a true public use of private property?


Leasehold Estates

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Leasehold estate is created when a landowner (or landlord) agrees to convey her rights to possess and use the property to a lessee for a certain period of time.


Leasehold Estates Periodic Tenancy: no definite

duration, but rent paid at certain intervals.

Tenancy at Will: termination of lease without notice.

Tenancy at Sufferance: tenant wrongfully possesses property.


Landlord-Tenant Relationships

• Lease Agreement can be oral or written (oral may not be enforceable).

• Lease gives Tenant the temporary right to exclusively possess the property.



• Rights and Duties.– Possession: tenant has “covenant of quiet

enjoyment.” • Landlord has a duty to deliver actual (or

right to) physical possession. • Eviction: landlord interferes with tenant’s

right to possession. Constructive eviction: landlord fails to perform duties under the lease, making use of premises impossible.



• Rights and Duties (cont’d).– Use and Maintenance of the Premises.• Tenant is responsible for damages to

property, and cannot be a nuisance and interfere with others quiet use of property. • Landlord is responsible to maintain

common areas such as stairs, pools, and elevators.



• Rights and Duties (cont’d).– Implied Warranty of Habitability.• Premises are safe and habitable for humans to live in. • Landlord is responsible to keep leased premises in good

repair.– Rent: rent can be withheld but it must be put into

escrow pending repairs.



• Transferring Rights to Leased Property.– Assignment: lessee can transfer lease to assignee,

if allowable under lease. Assignor is still liable for rent.

– Sublease: tenant transfers all or part of premises for less than duration of lease.



• Termination of the Lease. – Usually a lease terminates when its term ends, and

landlord retakes possession.– Release and Merger—Tenant becomes owner,

needs writing.– Surrender By Agreement—Parties agree to

terminate early, need writing.



• Termination of the Lease. (cont’d)– Abandonment—Tenant abandons; automatic

termination, no writing required. Landlord is required to mitigate her damages and rent the property.


Land-Use Control Zoning Laws. –Purpose and Scope of Zoning Laws.• Permissible Uses of Land: residential,

commercial, and industrial.• Other Zoning Restrictions: residential

areas.


Land-Use Control Exceptions to Zoning Laws. –Variances: allows exception to the

zoning rules.–Special-Use Permits.–Special Incentives: encourages

development, usually by tax incentives and abatements.


Leasehold Estates• Parties’ Rights and Duties.– Possession: tenant has “covenant of quiet

enjoyment.” • Landlord has a duty to deliver actual (or

right to) physical possession. • Eviction: landlord interferes with tenant’s

right to possession. Constructive eviction : landlord fails to perform duties under the lease, making use of premises impossible.

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• Parties’ Rights and Duties (cont’d).– Use and Maintenance of the Premises.• Tenant is responsible for damages to

property, and cannot be a nuisance and interfere with others quiet use of property. • Landlord is responsible to maintain

common areas such as stairs, pools, and elevators.

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• Parties’ Rights and Duties (cont’d).– Implied Warranty of Habitability: premises are

safe and habitable for humans to live in. Landlord is responsible to keep leased premises in good repair.

– Rent: rent can be withheld but it must be put into escrow pending repairs.

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• Transferring Rights to Leased Property.– Assignment: lessee can transfer lease to assignee,

if allowable under lease. Assignor is still liable for rent.

– Sublease: tenant transfers all or part of premises for less than duration of lease.

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• Termination of the Lease. – Usually a lease terminates when its term ends, and

landlord retakes possession.– Release and Merger—Tenant becomes owner,

needs writing.– Surrender By Agreement—Parties agree to

terminate early, need writing.

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• Termination of the Lease (cont’d).– Abandonment—Tenant abandons; automatic

termination, no writing required. Landlord is required to mitigate her damages and rent the property.

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• Leasehold Estates.– Created when owner or lessor conveys right to

possess or use the property to a lessee (tenant) for certain period of time.

– Fixed-Term Tenancy (or Tenancy for Years): express contact for specified period of time.


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• Leasehold Estates (cont’d).– Periodic Tenancy: no definite duration, but rent

paid at certain intervals.– Tenancy at Will: termination of lease without

notice.– Tenancy at Sufferance: tenant wrongfully

possesses property.


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• Restrictive Covenants: a private restriction on the use of land and is generally binding on the purchaser of the land because it “runs with the land” as stated in the deed.

• Inverse Condemnation. Government takes land without paying compensation at all.

Limitations on the Rights of Property Owners

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Zoning and Government Regulations

Purpose and Scope of Zoning Laws. –Permissible Uses of Land: residential,

commercial, and industrial.–Other Zoning Restrictions.

Exceptions to Zoning Laws. –Variances: allows exception to the

zoning rules.

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Zoning and Government Regulations

Exceptions to Zoning Laws (cont’d). –Special-Use Permits.–Special Incentives: encourages

development, usually by tax incentives and abatements.

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Chapter 28: Real Property and Landlord-Tenant Law

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Transcript of Chapter 28: Real Property and Landlord-Tenant Law