I.
Landlord-Tenant Law
A. Non-Freehold
1. The leasehold
B. The estates are distinguished from each other by the duration of the right to
possession
1. Fee simple: has the greatest duration. It is inheritable, devisable, and
transferable, inter vivos; and it potentially can last forever.
C. Future Interest and Reversion
1. A landlord creates a future interest, a reversion, either orally or in a
written lease because the property will revert to the landlord when the
lease term expires.
a) Ex. if O leases property to A for one year, the property will
automatically revert after one year (which is to say, the lease will
end).
D. Leasehold Estates
1. The duration of a tenant’s right to possession under a lease depends upon
the type of leasehold that she has. There are four leasehold estates:
a) Term of Years/Estate for years: possession is for a fixed period
of time agreed upon by the parties
b) Periodic tenancy/month to month: possession is for a fixed
period of time, which repeats unless a party terminates the lease by
giving “Notice”
c) Tenancy at sufferance/holdover tenancy: this “estate” only
results when a tenant under another type of lease holds over.
Possession is for no definite length of time.
d) Tenancy at will: possession is for no definite length of time, and
either party can terminate the lease at any time.
2. A LEASE: is both a conveyance of an important property interest (a
leasehold estate in land)..as well as a contract between the landlord and
the tenant.
E. Vasquez v. Glassboro
1. Leasehold: a lessee receives a transfer of the right of possession of
specific property either for a definite or indefinite period
2. License: a licensee receives revocable permission to engage in an act or
series of acts on the property
3. Common law rule: “one who occupied premises as an employee of the
owner and received the use of the premises as past compensation for his
services or under a contract of employment was not considered a tenant”
a) No contract can be sustained if it is inconsistent with the public
interest or detrimental to the common good
II.
F. License vs. Leasehold
1. If no statute answers the question, these cases are generally decided by
asking whether the owner has transgered “exclusive possession” of a
defined space.
a) Disputes involving students/employees/ roommates are common
2. Self-Help Eviction: today almost all states outlaw self-help in removing
tenants, instead obligating landlords to use court proceedings (eviction) to
recover possession
a) A landlord can get into serious “treble” if they engage in self-help
The Modern Lease
A. Duties - Express and Implied
1. Tenants:
a) Pay rent when due
b) Not to commit waste (damage the premises)
c) Comply with covenants in the lease agreements
2. Landlords:
a) Deliver possession: of the premise to the tenant
b) Not interfere with the tenant’s quiet enjoyment of the premises
c) Maintain and repair the premises so that they are habitable and
comply with housing codes
(1) Implied by operation of law even if not express
3. Landlord’s Duty to Deliver Possession
a) Modern/majority rule: actual possession
b) Traditional Rule: right to possession
4. Dependent vs. Independent Covenants
a) Modern view: lease covenants are regarded as dependent, which
means that a breach of promise by one party to contract relieves
the other of the obligation to perform her obligations under the
contract.
(1) Ex. terry tenant fails to pay rent for the month of November
(2) Ex. Larry landlord commences a summary process action
to evict him
5. Assignment vs. Sublet
a) Assignment: conveys ALL the tenant’s remaining property
interests without retaining any future rights to enter the property
(1) Ex. T1 has one year lease after 2 months, T1 transfers right
to possession for remaining 10 months to T2
b) Sublet: Tenant retains some future interest of the right to control
the property in the future
III.
(1) Ex. T1 has on year lease, after 2 months, T1 transfers right
to possession for 6 month period to T2
c) A covenants prohibiting assignment does NOT prohibit subleasing,
and vice versa
(1) Modern approach: is to interpret according to the intent
of the parties. Subletting is now thought to refer to both
subletting and assignment.
d) Covenants against assignment or sublease are strictly construed
against the landlord, and absent an express restriction in the
lease, a tenant may freely transfer his leasehold interest, in
whole or in part.
6. Does tenant have right to assign or sublet exercise:
a) When the lease is silent: Yes
b) When the lease prohibits assignment or sublease: No
c) When the lease requires landlord consent
(1) Is reasonableness implied?
B. Kendall v. Ernest Pestana, Inc.
1. Key Fact: written consent of lessor/T2 (Pestana) is required before the
ST/sublessee (Bixler) can assign his interest to Kendall.
a) Issue: whether the criterion of “reasonableness” should be
implied in the phrase “no subletting without the landlord’s
consent?”
2. Majority rule: where a lease contains an approval clause the lessor may
arbitrarily refuse to approve a proposed assignee no matter how suitable
the assignee appears to be and no matter how unreasonable the lessor’s
objection.
3. Dumpor’s Rule (Prior Exception): “the harsh consequences of this rule
have often been avoided through application of the doctrines of waiver
and estoppel, under which the lessor may be found to have waived (or be
estopped from asserting) the right to refuse consent to assignment.”
4. Minority rule: court concludes that a lessor’s refusal to consent to a
transfer for reasons merely of personal taste and convenience, or to get a
higher rent, is unreasonable, based on the law’s general preference for
free alienability of property.
Landlord Tenant Law
A. What is the landlord hoping to recover?
1. Money judgment (rent and/or damages), and/or
2. Possession or premises
B. Sommer v. Kridel
1. Issue: does the landlord have a duty to mitigate damages?
IV.
a) Traditional rule: a landlord is under no duty to mitigate damages
caused by a defaulting tenant
b) Appellate division decision: there is no sound reason for
continuation of a special real property rule to the issue of
mitigation
(1) “Unrealistic and uneconomic rule”
c) Modern/Majority Rule: a landlord has a duty to mitigate
damages where he seeks to recover rents due from defaulting
tenant
Quiet Enjoyment (COQE) IWH Retaliatory Eviction
A. Minjak Co. v. Randolph
1. Covenant of quiet enjoyment (CQE): the landlord impliedly promises
not to disturb the tenant’s quiet enjoyment of the premises. (Implied in
every landlord-tenant relationship)
2. What does it mean to disturb the tenant’s quiet enjoyment?
a) Actual eviction/partial
b) Actual/constructive eviction/partial constructive
3. Rule: where there is a covenant of enjoyment, whether express or
implied, and it is breached substantially by the landlord, the courts have
applied the doctrine of constructive eviction as a remedy for the tenant.
This defense allows the tenant to stop rent payments and move out
before the end of the lease term.
4. Traditional rule: tenants could not use the defense of constructive
eviction unless they moved out within a reasonable time
5. Modern rule of Minjak: a tenant may assert as a defense to the nonpayment of rent the doctrine of constructive eviction, even if he or she
has abandoned only a portion of the premises due to the landlord’s acts
in making that portion of the premises unusable by the tenant
a) Partial constructive eviction
6. Why punitive damages?
a) To deter morally culpable conduct
7. Explanation: if you are being evicted for nonpayment of rent, bad
conditions make your home worth less than the rent the landlord is
charging
B. The Rise of Tenant Protections
1. Warranty of habitability and prohibition on Retaliatory Evictions
2. Javins v. First National Realty Corp.
a) Issue: whether housing code violations which arise during the term
of a lease have any effect upon the tenant’s obligation to pay rent?
3. Without implied warranty of habitability?
a) Eviction for non payment of rent
b) Tenants allege 1500 violations of the housing regulations
c) Old rule - the lessor is not obligated to repair unless he covenants
to do so in the written lease contract
(1) Possible defense?
(a) COQE
4. With implied warranty of habitability
a) New rule: the old no-repair rule cannot coexist with the
obligations imposed on the landlord by a typical modern housing
code, and must be abandoned in favor of an implied warranty of
habitability
(1) If the jury determines that the entire rental obligation has
been extinguished by the landlord’s total breach, then the
action for possession on the ground of nonpayment
must fail.
C. Review info on CQE
1. Constructive eviction: occurs when the landlord substantially interferes
with the tenant’s quiet enjoyment of the premises.
a) The defense of constructive eviction allows the tenant to stop rent
payments and move out before the end of the lease term
b) The traditional rule is that the tenant can raise defense only if he
moves out within a reasonable period of time
2. Example form for pro se parties: “ I have a defense for nonpayment
because the Plaintiff/Landlord has failed to maintain the premises in a
fit and habitable condition.”
D. Tenant remedies:
1. Rescission
2. Rent withholding
3. Rent abatement
4. Repair and deduct
5. Injunctive relief
6. Administrative remedies
7. Criminal penalties
8. Compensatory damages
E. Hillview Associates v. Bloomquist
1. Retaliatory eviction: occurs when a landlord attempts or succeeds at
removing a renter, or refuses to renew a lease in response to a complaint
or action that is within a tenant’s legal rights
a) If this defense can be shown it can defeat the landlord’s action for
possession
V.
F. Imperial Colliery Co. v. Fout
1. A tenant should not be punished for claiming the benefits afforded by
health and safety statutes passed for his protection
a) Issues:
(1) whether a residential tenant who is sued for possession of
rental property may assert retaliation by the landlord as a
defense?
(2) Whether the retaliation motive must relate to the tenant’s
exercise of a right incidental to the tenancy?
b) The retaliatory eviction defense must relate to activities of the
tenant incidental to the tenancy
Concurrent Tenancies
A. What does it mean?
1. More than one person owns a property interest at the same time
2. There are a number of rules that have to do with full sharing of rights and
responsibilities of ownership
B. Concurrent tenancy
1. You have one stick or a few different sticks or even the entire bundle but
the control over that property interest is going to be held by more than one
person
a) “Co-owning the entire bundle of sticks”
b) KEY- control is shared, more than one person has the right to
control the same thing at the same time
C. Types:
1. Tenancy in Common (default)
a) Each tenant, no matter how small her fractional interest has the
right to possess the entire parcel
b) If the language is ambiguous, the courts interpret this
2. Joint Tenancy (right of survivorship)
a) Each has a right to share the profits
b) Key feature: right of survivorship
3. Tenancy by the Entirety (married couple)
a) Each has an obligation to contribute to basic costs
(1) Only married couples
D. Questions to keep in mind:
1. How are they created
2. Whether there is a right of survivorship
3. Whether tenants can unilaterally (by themself) sever or terminate their
tenancy
E. Creating a Tenancy in Common (Default)
1. O grants Blackacre "to A and B as tenants in common."
2. T the owner of Blackacre dies intestate. Under her state's law of intestacy,
Blackacre goes to her three children, A, B, and C.
3. O grants Blackacre "to A,B, and C as tenants in common, with a 1/4
undivided interest in A, a 1/4 undivided interest in B, and a 1/2 undivided
interest in C.
4. O grants Blackacre, "to A,B, and C as tenants in common, with a 1/4
undivided interest in A, a 1/4 undivided interest in B, and a1/2 undivided
interest in C."
a) Whenever you see language to this effect not exactly equal also
tells you a tenancy in common
F. Notes:
1. No right of survivorship
2. Tenants in common have the right to devise (will) their interest or have it
inherited in case of intestacy (no will) on death
G. Policy concerns:
1. Highly fractionated ownership
a) Because with each successive generation there is no “right”
number, so tenants in common increases and it is difficult to
manage that property
(1) Arkland Case
H. Partition: co-tenancy can be terminated by bringing an action for partition
1. Partition in kind or by sale
2. The law prefers partition in kind because land is unique and money does
not always proximate value
3. Partition by sale: where you sell off the property and the co-tenant split
proceeds according to their fractional shares
I. Rights to encumber (lease) their interest unilaterally
1. Carr v. Deking
J. Must tenants in common have equal shares of property?
1. NO. Tenants in common (unlike joint tenants with right of survivorship)
DO NOT need to possess equal fractional shares
a) On exam: if insisting on owning a larger fractional share than the
students or someone know the only option is the tenancy in
common
(1) Each tenant no matter how small has the right to possess
the entire parcel
2. Rule: Each tenant has an obligation to contribute to basic costs
a) Do not include the third luxury bathroom (nothing extra)
K.
L.
M.
N.
b) Necessary repairs (yes)
c) No need to share improvements
Joint Tenancy Creation (Intent + 4 Unities)
1. Unity of time
a) Interests vested at the same time
2. Unity of title
a) Interest acquired by the same instrument
3. Unity of interest
a) Interests of the same ownership, share, equal in size, and duration
4. Unity of possession
a) Interests give identical rights to possess, use, and enjoy the whole
property
(1) If all four are not met then a tenancy in common is created
Olivas v. Olivas
1. Actual Ouster- lock, physically locked out, etc. An actual ouster, if your
co tenant does this and even though the general rule says they do not have
to compensate you because you could exercise your right to be there - you
can't with an actual ouster so they would have to compensate you
2. Constructive Ouster- occurs when co-tenants, through no direct fault of
their own (action), cannot reasonably live together on the same property
and one moves out.
a) Examples: " we have a studio apartment and 200 tenants in
common" they can not all physically occupy that tiny apartment
(1) But for the fact that there is a girlfriend out there to go to
live with - Olivas they are getting a divorce and can not live
under the same roof with one another and is as if somebody
has been kicked out and they have to be compensated
(a) The reason the husband in Olivas does not is
because the court says the husband decided to leave
and abandoned his interests to live with the
girlfriend
Whether Tenants in common can unilaterally lease the property?
1. Yes.
a) Rule: a cotenant may lawfully lease his own interest in the
common property to another without the consent of the other
tenant and without joining the lease
(1) Case helps to realize the remedy is partition
Tenhet v. Boswell
1. We have joint tenancy and not tenancy in common - does that make a
difference to the matter of unilateral transfer of an interest in the property?
a) COURTS ARE DIVIDED
b) DEPENDS ON JURISDICTION
2. Exam: need to know the difference of opinion (if presented with this
issue)
a) “Some jurisdictions it will and in other it will not”
(1) Additional points: at common law you need the four
unities and preserve them or you sever joint tenancy
(a) “The requirement of four unities reflects the basic
concept that there is but one estate which is taken
jointly; if an essential unity is destroyed the joint
tenancy is served and a tenancy in common results.”
b) The other issue: whether the lease would survive the death of the
lessor?
(1) This case: right of survivorship was not served so the
interest were extinguished at death with the lease
(a) Argument: could have done title search in order to
find who had interest
O. Tenancy of Entirety Married Couple MA
1. Tenants by the entirety operate like joint tenancy, but it can only occur
when real property is owned by a married couple. Upon the death of one
spouse, title to the entire estate is transferred to the surviving spouse
without the need to go through the probate process. The spouses are
considered a single entity that owns a 100% interest in the property, and
under the statute, each owner shares equally in the property's control,
management and possession and the right to receive rents, products, and
income.
a) Advantage: immunity for creditors
P. Sawada v. Endo
1. Issue: whether the interest of one spouse in real property, held in
tenancy by the entirety, is subject to levy and execution by his or her
individual creditors?
a) Neither husband or wife has a separate divisible interest in the
property held by the entirety that can be conveyed or reached by
execution. The indivisibility of the estate, except by joint action
of the spouses, is an indispensable feature of the tenancy by the
entirety."
(1) Only way out: divorce divorce
Q. Take Away Ark Land:
1. " Partition actions are used in order to settle disputes between co tenants
on a tract of land; and the judicial action serves to give each cotenant their
VI.
VII.
fractional interest in the property. Partition actions can be resolved in one
of two manners:
a) Partition by sale or partition by kind
b) Partition by kind: is a division of the property itself into specific
portions to each interest holder and
c) Partition by sale: Is simply the sale of the property and the
allocation of the cash proceeds to each cotenant in accordance with
the interest held
(1) The courts prefer Partition IN KIND: LAND IS UNIQUE
Takings Law: When the Government Acquires Property Without the Owner’s
Consent
A. Kelo v. City of New London
1. Issue: whether the city’s proposed disposition of this property, for the
purpose of economic development, qualifies as a ‘public use’ within the
meaning of the Takings Clause of the Fifth Amendment to the
Constitution.
Regulatory Physical Appropriation and Cedar Point
A. Best way to answer taking questions
1. If Eminent Domain/Government Physical Appropriation of Private
Real Property You have a classic taking and Kelo applies.
a) Your analysis should include:
(1) A statement showing that a taking (seizure) of private real
property occurred
(2) An analysis of whether the taking was for public use
(interpreted in Kelo)
(3) And a mention of the fact that the private property owner is
owed “just compensation” measured as fair market value
of the property prior to the taking.
2. When examining government regulations of a private property
owner’s use of their property, first see if you can apply one of the “two
categories of regulatory action that generally will be deemed per se
takings (bright line rules)
a) “Permanent physical invasions of property” (Loretto)
b) Regulations that “completely deprive an owner of all economically
viable use of her property” (Lucas)
3. In most other regulatory takings cases, apply the following ad hoc test:
a) The “economic impact”
b) The protection of “reasonable” or “distinct” “investmentbacked expectations,” and
c) The “character of the governmental action”
B. Another key point:
1. Exercises of the police power = no compensation
a) Ex. blighted/nuisance/red cedar fungus
(1) “ Because individuals have no right to commit a nuisance
or to engage in activities that cause substantial negative
externalities, they have no right to be compensated when
those regulations impinge on their property interests; they
have not lost anything to which they were entitled in the
first place.”
2. Tension
a) Regulatory takings = compensation
C. PruneYard Shopping Center v. Robins
1. The requirement that appellants permit appellees to exercise stateprotected rights of free expression and petition on shopping center
property clearly does not amount to an unconstitutional infringement of
appellant’s property rights under the Taking Clause.
a) Appellants have failed to demonstrate that the ‘right to exclude
others is so essential to the use or economic value of their
property that the state-authorized limitation of it amounted to a
“taking.”
b) Significance: the fact that they may have physically invaded
appellants’ property cannot be viewed as determinative
D. Loretto v. Teleprompter Manhattan CATV Corp.
1. Rule: a permanent physical occupation authorized by the government is
a taking without regard to the public interest that it may serve
a) When the character of the government action is permanent
physical occupation of property, our cases uniformly have found a
taking to the extent of the occupation without regard to whether the
action achieves an important public benefit or has only minimal
economic impact on the owner.
(1) When the physical intrusion reaches the extreme form of a
permanent physical occupation, a taking has occurred.
2. Whenever a regulation results in a physical appropriation of property, a
per se taking has occurred, and Penn Central has no place ( Cedar Point
Nursery)
E. Cedar Point Nursery
1. The access regulation appropriates a right to invasive the grower’s
property and therefore constitutes a per se physical taking
a) Rather than restraining the growers’ use of their own property the
regulation appropriate for the enjoyment of the third parties the
owners’ right to exclude.
2. Government- authorized invasions of property - whether by plane, boat,
cable, or beachcomber - are physical takings requiring just
compensation.
F. Lucas v. South Carolina Coastal Council
1. Act prevents lucas from building any “permanent habitable structures”
on his two lots
2. Key: Lucas contended the act’s complete extinguishment of his property’s
value entitled him to compensation regardless of whether the legislatures
had acted in furtherance of legitimate police power objectives
3. The court reasoned when the owner of real property has been called upon
to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a
taking
a) When a regulation declares ‘off-limits’ all economically
productive or beneficial uses of land goes beyond what the
relevant background principles would dictate, compensation
must be paid to sustain it.
G. Palazzolo v. Rhode Island
1. Because the lower court had found this was not a 100% taking, Lucas did
not apply - the case was remanded for analysis under the Penn Central ad
hoc test.
a) Key: it is important to note that RI argued that because Plaintiff
had taken his title of his property after the law regulating coastal
development had been put in place, he had no reasonable
investment - backed expectations for his intended development and
no taking should be recognized.
(1) SC: disagreed: this would allow states to put an expiration
date on the Takings Clause. Future generations have a right
to challenge unreasonable limitations on the use and value
of land.
H. Tahoe- Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
1. When SC said all in Lucas it meant all
a) Here: court ruled that a 6 year temporary moratorium was not a
per se taking of property under the Lucas
(1) Only 100% complete elimination of value triggers Lucas