978-0077733735 Chapter 30 Lecture Notes

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Chapter 30 – Real Property and Landlord and Tenant Law

Chapter 30

Real Property and Landlord and Tenant Law

I. Key Terms

Actual eviction (p. 748) Life estate (p. 731)

Adverse possession (p. 740) Lodger (p. 743)

Bargain-and-sale deed (p. 739) Navigable airspace (p. 728)

Community property (p. 733) Nonconforming uses (p. 741)

Concurrent ownership (p. 732) Periodic tenancy (p. 744)

Constructive eviction (p. 749) Quiet enjoyment (p. 748)

Condemnation (p. 741) Quitclaim deed (p. 739)

Co-ownership (p. 732) Real estate (p. 727)

Cotenants (p. 732) Real property (p. 727)

Dominant tenement (p. 729) Remainder estate (p. 731)

Dormant minerals statute (p. 737) Reversion estate (p. 731)

Easement (p. 729) Right of way (p. 729)

Easement by grant (p. 729) Riparian owners (p. 728)

Easement by prescription (p. 729) Servient tenement (p. 729)

Easement by reservation (p. 729) Severalty (p. 732)

Ejectment (p. 749) Special warranty deed (p. 739)

Eminent domain (p. 741) Sublease (p. 747)

Estate in fee simple (p. 731) Subterranean rights(p. 735)

Eviction (p. 748) Tenancy (p. 743)

Fee simple determinable (p. 736) Tenancy at sufferance (p. 744)

Fixture (p. 728) Tenancy by the entirety (p. 733)

Fracking (p. 735) Tenancy at will (p. 743)

Freehold estates (p. 731) Tenancy for years (p. 744)

General warranty deed (p. 739) Tenancy from year to year (p. 744)

Grantee (p. 739) Tenant (p. 742)

Grantor (p. 739) Tenants in common (p. 732)

Joint tenants (p. 732) Trade fixtures (p. 729)

Landlord (p. 742) Underlease (p. 746)

Lease (p. 736) Unlawful detainer (p. 750)

Leasehold estate (p. 743) Variance (p. 741)

Lessee (p. 736) Warranty of habitability (p. 747)

Lessor (p. 736) Waste (p. 749)

License (p. 736) Zoning laws (p. 740)

II. Learning Objectives

1. Explain what constitutes real property.

2. Differentiate between freehold and leasehold estates.

3. Describe the different types of co-ownership of real property.

4. Explain how oil and gas rights can be transferred.

5. Discuss the goal of the dormant minerals act.

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6. Identify the methods of acquiring title to real property.

7. Explain eminent domain.

8. List the five elements necessary to create a landlord–tenant relationship.

9. Identify the essential requirements of a lease.

10. Make clear the duties of landlords and tenants.

III. Major Concepts

30-1 The Rights Related to Real Property

Real property is the ground and everything permanently attached to it. It includes the

airspace above the surface to as high as the owner can use and the ground under the

surface. Fixtures are personal property that are so permanently attached to real property

that they become part of the real property. Easements give people the right to pass over

another’s land, to run wires through another’s airspace, to drain water onto another’s

property, and to run pipes underneath another’s ground. Easements run with the land.

30-2 Estates in and Conditions-Ownership of Real Property

An estate in fee simple is the greatest interest that one can have in real property. It

descends to one’s heirs upon death and can be disposed of in any manner during one’s

lifetime. In contrast, a life estate lasts only for someone’s life. People may own real

property individually or with others. When two or more people own real property as

tenants in common, the interest of a deceased owner’s share passes to the heirs upon

death. In contrast, when two or more people own real property as joint tenants or tenants

by the entirety, the interest of the deceased owner’s share passes to any other cotenants

upon death.

30-3 Subterranean Rights: Oil and Gas Developments

Subterranean rights are sold to corporations exploring for coal, oil, or other mineral

deposits. States differ on how they characterize a contract involving subterranean rights

especially as those rights relate to the extraction of gas, oil, and other minerals. Some

states are quite unequivocal in declaring that a contact for oil and gas rights is neither a

license nor a lease, but is instead a fee simple determinable. Other states characterize oil

and gas contracts as real property, lease agreements, and others as a simple license. Some

courts manage to mix and match a lease with a fee simple determinable. There are some

states that seem unable to make up their minds. A dormant minerals statute is designed to

permit the surface owner of a plot of land to recover mineral rights that have not been

used by a purchaser of such rights for a long period as specified in the statute, often not

less than 20 years.

30-4 Acquiring Title to and Managing Real Property

A deed is used to transfer real property by sale or gift. The records of the probate court,

instead of a deed, establish title to property when an owner dies. Title to real property

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may also be gained by adverse possession. Zoning laws regulate the uses that may be

made of properties within specified geographical areas. Eminent domain is the right of

federal, state, and local governments, or other public bodies, to take private lands for a

public purpose. Owners must be paid the fair value of the property taken.

30-5 The Landlord-Tenant Relationship

The landlord tenant relationship is a contractual arrangement whereby the owner of real

property allows another to have temporary possession and control of the premises in

exchange for consideration. A lease is different from a license and from an agreement

with a lodger. A tenancy at will is an ownership interest (estate) in real property for an

indefinite period of time. A tenancy for years is an estate for a definite period of time, no

matter how long or how short. A periodic tenancy is a tenancy that continues for succes-

sive periods until one of the parties terminates it by giving notice to the other party. A

tenancy at sufferance arises when tenants wrongfully remain in possession of the

premises after their tenancy has expired. A lease creates the landlord–tenant relationship.

Because it is a contract, the general rules of contract law apply to it.

30-6 Duties of the Landlord and the Tenant

A landlord may not discriminate in selecting tenants on the grounds of race, creed, color,

or gender. Landlords have the right to evict tenants for nonpayment of rent,

disorderliness, and unpermitted use of the premises. Tenants must observe the valid

restrictions in a lease and not commit waste. When someone is injured, the person in

control of that part of the premises where the injury occurs is responsible if negligent.

Peaceable entry, ejectment, and unlawful detainer are the principal methods available to

landlords to regain possession of their premises.

IV. Outline

I. The Rights Related to Real Property (30-1)

A. Introduction

1. The term “real estate” refers to the actual land itself as well as to everything

permanently attached to it.

2. The term “real property” refers to ownership rights that go along with the real estate.

B. Trees and Vegetation

1. Trees, flowers, shrubs, vineyards, and field crops that grow each year without

replanting (perennials) are considered real property.

2. People have a right to cut off trespassing tree branches in their airspace and

trespassing roots at the boundary line of their property.

C. Air and Water Rights

1. Landowners own the airspace above their land to as high as they can effectively

possess or reasonably control it.

2. Congress has enacted legislation that gives the public the right of freedom of transit

through the navigable airspace of the United States.

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3. The navigable airspace, subject to FAA regulations, is the space above 1,000 feet over

populated areas and above 500 feet over water and unpopulated areas.

4. People who own land along the bank of a river or stream are riparian owners, and

they have certain rights and duties with respect to the water.

5. If a nonnavigable stream is a boundary line between two parcels of land, the owner on

each side owns to the center of the stream.

6. If the stream is navigable, the owner only owns to the bank of the stream; and the bed

is owned by the state.

7. The right to use the water depends on the doctrine followed in the state involved.

D. Fixtures and Easements

1. When personal property is attached to real property, it is known as a fixture and

becomes part of the real property.

2. Trade fixtures are items of personal property brought upon the premises by the tenant

that are necessary to carry on the trade or business to which the premises will be

devoted, and those fixtures remain the personal property of the tenant.

3. An easement is the right to use another’s land for a particular purpose.

4. The dominant tenement is the one who enjoys the easement and to whom it attaches.

5. The servient tenement is the one on whom the easement is imposed.

6. An easement by grant is created when the owner of land signs a deed giving the

easement to the dominant tenement and keeps the remainder of the land.

7. An easement by reservation is created when the owner of land grants to another

person the entire parcel of land except for the easement that he or she keeps.

8. An easement by prescription is created by passing over another’s property without

permission openly and continuously for a period of time set by state statute.

9. An easement by necessity may be created, for example, when the only access to

property is through another’s land.

10. Once an easement is created, it runs with the land.

II. Estates in and Co-Ownership of Real Property (30-2)

A. The Law of Estates

1. Freehold estates are either estates in fee simple or life estates.

2. A person owning real property outright, forever, is said to have an estate in fee

simple.

3. A person who owns real property for life or for the life of another owns an interest

called a life estate.

4. If the estate passes to someone other than the grantor or the grantor’s heirs, the future

interest is called a remainder estate.

5. If the estate returns to the grantor or the grantor’s heirs, the future interest is a

reversion estate.

B. The Law of Co-Ownership

1. Tenancy in Common

a. In a tenancy in common, each person owns an undivided share of the whole

property.

b. Tenants in common have the right to sell or deed away shares without the

permission of other cotenants with the new owner becoming a tenant in common

with the other tenants.

c. A cotenant’s share of the property transfers to that cotenant’s heirs upon death.

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2. Joint Tenancy

a. Four unities must be present to create joint tenancy:

(a) Time

(b) Title

(d) Possession

b. Upon the death of one joint tenant, the entire ownership remains in the other joint

tenants and does not pass to the heirs of the deceased cotenant.

c. A joint tenant may deed away his or her interest to a new owner without

permission of the other joint tenants; however, the new owner becomes a tenant in

common with the remaining joint tenants.

3. Community Property

a. Community property is property (except for gifts and inheritance) that is acquired

by the personal efforts of either spouse during marriage.

b. By law community property belongs to both spouses equally.

4. Tenancy by the Entirety

a. A tenancy by the entirety may be held only by a husband and wife.

b. In a tenancy by the entirety, upon the death of one spouse, the entire interest

passes to the other spouse.

c. Some states have done away by statute with tenancy by the entirety or altered it to

give equal rights to men and women.

III. Subterranean Rights: Oil and Gas Developments (30-3)

A. Subterranean Rights: The Basics

1. Unless excluded in the deed, the owner of land has exclusive title, known as riparian

rights, to material below the surface of the land.

2. The landowner’s right extends to the point determined to be the exact center of the

earth.

3. Subterranean rights are often sold to corporations exploring for coal, oil, or other

mineral deposits.

4. Issues involve what happens when damage caused by oil and mineral extraction

harms distant areas.

B. Oil and Gas Contracts: Lease, License, or Fee Simple?

1. Fee Simple Determinable

a. Some states declare that a contract for oil and gas rights is neither a license nor a

lease, but is instead, a fee simple determinable, meaning a fee simple that lasts as

long as the ability to take the oil and gas from the earth continues.

b. Once the ability to take oil and gas ends, the fee simple reverts to the original

owners.

2. Lease Agreements

a. Other states characterize oil and gas contracts as real property, lease agreements

and others as a simple license.

b. In a lease agreement, the lessees, those who purchase the right to enter the land

from the lessors, those who owned the land outright, receive the ability to operate

on the land as if it were their own, in exchange for an agreed to payment or a

payment schedule.

3. A License to Search and Extract

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a. A license is a much more limited contract than a lease and bestows no property

rights on the licensee.

b. The only rights transferred with the lease are the right to enter the land, the right

to search for the oil and gas, and the right to leave with a quantity of that oil

and/or gas.

4. A Lease that Establishes a Fee Simple Determinable

a. Some courts mix and match a lease with a fee simple determinable.

b. These courts would say that a lease agreement that empowers the lessees to hold

on to the land and to perform whatever tasks they reasonably need to perform in

order to accomplish the objectives for which they wanted that land actually

creates a fee simple determinable.

C. Dormant Minerals Statutes

1. A dormant minerals statute is designed to permit the surface owner of a plot of land to

recover mineral rights that have not been utilized by a purchaser of such rights for a

long time.

2. Some dormant minerals statutes require that the original owner do nothing while

others require that the owners take certain steps.

IV. Acquiring Title to and Managing Real Property (30-4)

A. Title to Real Property

1. Title by Sale or Gift

a. The grantor transfers title to property through the use of a deed.

b. The grantee is the person to whom the title is transferred.

c. A general warranty deed contains express warranties under which the grantor

guarantees the property to be free of encumbrances created by the grantor or by

others who had title previously.

d. A special warranty deed contains express warranties under which the grantor

guarantees that no title defect arose during the time that the grantor owned the

property, but not otherwise.

e. A bargain-and-sale deed is one that transfers title to property but contains no

warranties.

f. A quitclaim deed is one that transfers to the buyer only the interest that the seller

may have in the property.

2. Title by Will or Descent

a. When people die owning real property solely in their own name or with others as

tenants in common, title passes to the heirs at the moment of death.

b. A deed is not used when title passes to heirs through death, and records of the

probate court establish title to the property.

c. A deed may be used by the personal representative of an estate to transfer title to

real property to another.

3. Title by Adverse Possession

a. Title to real property may be obtained by taking actual possession of the property

openly, notoriously, exclusively, under claim of right, and continuously for a

period of time set by state statue.

b. A court of equity has the power to declare the one claiming under adverse

possession the new owner.

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B. Government Management of Real Property

1. Zoning Laws

a. Municipal zoning laws regulate the uses that may be made of properties within

specified geographical areas or districts.

b. Residential zoning prohibits properties from being used for commercial purposes

within a given area.

c. Multifamily zoning permits construction of apartment buildings.

d. Limited-commercial zoning allows for the construction of small stores but

restricts the building of large shopping malls and commercial centers.

e. Industrial zoning allows the building of factories.

f. Agricultural zoning allows farming in a particular area.

g. Newly passed zoning laws do not apply to existing uses of land.

h. A variance is an exception that permits a use that differs from those allowed under

an existing ordinance.

2. Eminent Domain (23-7)

a. Eminent domain is the right of federal, state, and local governments, or other

public bodies, to take private lands, with compensation to their owners, for a

public purpose.

b. Under the U.S. Constitution, the U.S. Supreme Court recently ruled that the

government may take private property to promote private economic development;

and, subsequently, many states have passed laws making it more difficult to take

private property by eminent domain.

c. Fair market value must be given to the owner of private land that is taken.

d. Property owners must be compensated by the government when regulations that

are unduly burdensome deprive them of the use of their land.

V. The Landlord-Tenant Relationship (30-5)

A. Introduction

1. The landlord-tenant relationship is a contractual arrangement whereby the owner of

real property allows another to have temporary possession and control of the premises

in exchange for consideration.

2. The owner who gives the lease is the lessor or the landlord.

3. The person to whom the lease is given is the lessee or the tenant.

4. Five elements are necessary for the creation of a landlord-tenant relationship.

a. Consent of the landlord to occupancy by the tenant.

b. Transfer of possession and control of the property to the tenant who is in an

inferior position to the rights of the landlord.

c. The right by the landlord to the return of the property, called the right of reversion

d. The creation of an ownership interest in the tenant know as the leasehold estate

e. Either an express or implied contract between the parties that satisfies all the

essentials of a valid contract

B. Leasing Versus Other Relationships

1. Leasing Compared with Licensing

a. A lease gives an interest in real property and transfers possession.

b. A license gives no property rights or ownership interests in the property, and

merely allows the licenses to do certain acts that would otherwise constitute

trespass.

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c. A license does not run with the land and is usually not transferable.

2. Leasing Compared with Lodging

a. A lodger is one who has the use of property without actual or exclusive

possession.

b. Unlike a tenant, a lodger has no right to bring suit for trespass or to eject an

intruder from the premises.

C. Types of Leasehold Interests

1. Tenancy at Will

a. A tenancy at will is an ownership interest in real property for an indefinite period

of time.

b. No writing is required to create a tenancy at will, and it may be terminated at the

will of either party by giving proper notice.

2. Tenancy for Years

a. A tenancy for years is an ownership interest in real property for a definite or fixed

period of time.

b. The tenancy automatically terminates on the expiration of the stated term.

c. A tenancy for 100 years or more creates an estate in fee simple, transferring

absolute ownership to the tenant.

3. Periodic Tenancy

a. A periodic tenancy is a fixed-period tenancy that continues for successive periods

until one of the parties terminates it by giving notice to the other party.

b. Unless the landlord or the tenant gives advance notice of an intention to terminate

the lease, it will be automatically renewed at the end of each fixed period under

the same terms.

4. Tenancy at Sufferance

a. A tenancy at sufferance arises when tenants wrongfully remain in possession of

the premises after their tenancy has expired.

b. A tenant at sufferance is not entitled to notice to vacate and is liable to pay rent for

the period of occupancy.

c. A periodic tenancy or a tenancy at will may come about, however, instead of a

tenancy at sufferance if a landlord accepts rent from a tenant whose tenancy has

expired.

D. The Lease Agreement

1. Requirements

a. Because a lease is a contract, general rules of contract law apply to it.

b. The following are essential requirements of a lease:

(a) A definite agreement as to the extent and bounds of the leased property.

(b) A definite and agreed term.

2. Rent Control

a. Rent control laws limit what landlords can charge for rental property.

b. They often contain procedures that must be followed before tenants may be

evicted.

3. Security Deposits

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a. Landlords often require a security deposit, the last month’s rent, or both to be paid

at the beginning of a tenancy for protection against damage to the property as well

as nonpayment of rent.

b. State legislators have passed laws regulating security deposits on residential

property because of abuses of such deposits.

4. Option to Renew or to Purchase

a. Many leases contain a provision allowing the lessee to have the option to renew

the lease for one or more addition periods.

b. Some leases also contain an option to purchase the property at a stated price.

5. Assignment and Subletting

a. An assignment of a lease occurs when the interest in the leased premises is

transferred by the lessee to another person for the balance of the term of the lease.

b. A sublease occurs if the transfer is for a part of the term but not the remainder of

it.

c. A lease may be assigned or sublet unless the lease states otherwise.

d. An assignment or sublease will be held valid if the landlord accepts rent over a

period of time form either an assignee or a subtenant.

VI. Duties of the Landlord and the Tenant (30-6)

A. The Landlord’s Duties

1. Duty to Refrain from Discrimination

a. A landlord may not discriminate in selecting tenants on the grounds of race, creed,

color, national origin, or gender.

b. In most states a landlord may not restrict a married couple’s freedom to bear

children during the leasehold.

c. A landlord may set up a housing complex open only to people 62 years of age or

older.

d. The Americans with Disabilities Act requires that owners of public

accommodations, such as motels and hotels, have handicapped accessibility.

2. Duty to Maintain the Premises

a. When real property is rented for dwelling purposes, there is an implied warranty,

called the warranty of habitability, that the premises are fit for human habitation.

b. Many municipalities have adopted ordinances to protect tenants from unsafe or

unhealthy conditions created by a landlord’s refusal to make necessary repairs.

c. The majority of states hold that a landlord has a duty to clear common entryways

of natural accumulations of snow and ice.

3. Duty to Deliver Peaceful Possession

a. The tenant is entitled to the exclusive peaceful possession and quiet enjoyment of

the rental premises.

b. Quiet enjoyment is the right of a tenant to the undisturbed possession of the

property.

c. The landlord may not interfere with the tenant’s right of possession as long as the

tenant abides by the conditions of the lease and those imposed by law.

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d. The right to exclusive possession by the tenant makes the landlord a trespasser

should there be any unauthorized entry by the landlord into the rented premises.

e. A tenant who is wrongfully evicted, either by actual eviction or constructive

eviction, is not required to return and may consider the lease as ended.

B. Tenant’s Duties

1. A landlord has the right to remove, through court procedures, a tenant for

nonpayment of rent, disorderliness, or illegal or unpermitted use of the premises.

2. A tenant has a duty to observe valid restrictions contained in a lease.

3. Tenants have a duty to avoid committing waste, which is damage to premises that

significantly decreases the value of the property.

C. Tort Liability

1. The one who is in control of the part of the premises where an injury occurs usually is

responsible if an injury to another was caused by that person’s negligence.

2. The landlord is responsible for injury to others that may be caused by a defect in

common areas.

3. Landlords must take reasonable steps to guard against foreseeable criminal acts of

third parties.

D. Eviction Proceedings

1. Ejectment is the common law name given to a lawsuit brought by the landlord to have

a tenant evicted from the premises; but it is time-consuming, expensive, and subject

to long delays.

2. Unlawful detainer, referred to by different names in different states, is a proceeding

that provides landlords with a quick method of evicting tenants.

3. In an unlawful detainer action, strict notice requirements must be followed by the

landlord, after which both parties are given their day in court.

V. Background Information

A. Cross-Cultural Notes

1. Employers in Kenya are required to provide housing to employees.

2. China has hundreds of cities known as “ghost cities” containing everything from

shopping malls to soccer stadiums built on a plan of urbanization and economic

development that as yet not occurred. For more information, review the article from

60 minutes titles “China’s Real Estate Bubble” at

http://www.cbsnews.com/news/china-real-estate-bubble-lesley-stahl-60-minutes/ and

review the article “What Will Become of China’s Ghost Cities?” from Forbes at

http://www.forbes.com/sites/kenrapoza/2015/07/20/what-will-become-of-chinas-ghos

t-cities/.

B. Historical Notes

1. Landlord-tenant law began in England, where all land was once held by the king.

Lords were given plots of land in exchange for services, usually military, performed

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for the king. After the twelfth century, tenants were allowed to hold land for specific

periods under sealed contracts, but they didn’t have much recourse if the king

breached the contract and decided to reclaim the property. Not until the thirteenth

century were tenant rights protected by writ.

C. State Variations

1. States and municipalities may have specific enactments in regard to trees. For

example, Mill Valley, California declared redwood trees “heritage trees” and gave

them legal protection.

2. In Montana and many other states, mineral rights may be severed from the surface

rights in real property, resulting in different owners of the surface and minerals.

Severed minerals may originate in two ways. In some cases, the federal government

reserved and did not grant mineral rights in initial homestead claims. These reserved

minerals are mostly owned by the government with leasing administered by the

Bureau of Land Management. Owners may also decide to sell mineral interests.

3. States vary on approaches to surface water runoff. A majority of states follow a

reasonable use approach under which if a neighbor alters land resulting in runoff from

surface water, then the neighbor will be liable if the alteration was unreasonable. For

more information see the article “Water Damage and Neighbor Disputes” available

from Findlaw.com at

http://realestate.findlaw.com/neighbors/water-damage-and-neighbor-disputes.html.

4. Most states have abolished dower and curtesy replacing them with inheritance laws.

Kentucky, for example, however, retains and applies dower and curtesy laws in

relation to surviving spouses.

5. Most states have abolished the concept of tenancy by the entirety. Tennessee,

however, retains the concept.

6. Both California and New Jersey have statutory special warranty deeds. That is,

through the use of certain words, the grantor is assumed to give the warranties

enumerated in the statute.

7. In New Hampshire, no title to any real property or to any interest in real property may

be acquired by or against a railroad by adverse possession.

8. States have varying periods required in order to obtain property rights through

adverse possession. In California and Montana, persons in adverse possession of

property for five years, who have paid the taxes on the land, may claim ownership.

9. In Nebraska, a person may acquire title to the land of another by adverse possession

through actual, continuous, open, and exclusive possession under claim of ownership

for a period of ten years.

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10. When a lease ends and a tenant continues to pay rent, in most states the terms of the

expired lease carry over into a month-to-month tenancy. In Georgia if after the

expiration of an old lease, the landlord accepts rent and permits the tenant to remain,

a tenancy-at-will is created. The terms of the original lease still apply except that the

landlord can terminate or change the terms with 60 days’ notice, and the tenant may

terminate the lease with 30 days’ notice.

11. Iowa allows landlords to require up to two months rent for security deposits.

Minnesota law requires landlords to pay interest on security deposits.

12. In Colorado, a landlord’s willful retention of a security deposit can render a landlord

liable for treble the amount of that portion of the security deposit wrongfully withheld

from the tenant, together with reasonable attorney’s and court costs. The tenant has

obligations in regard to notification of the landlord of the intention to file legal

proceedings.

13. In California if a commercial lease does not include a restriction on the tenant’s

ability to transfer, then the tenant retains an unrestricted right to transfer the interest in

the lease.

14. In New York, any agreement by a tenant of a dwelling that waives or modifies the

tenant’s statutory rights to habitability is considered void as against public policy.

15. In Kansas no tenant for a term not exceeding two years, or at will, or by sufferance,

may assign an interest in a lease without the written consent of the landlord. Alabama

prohibits landlords from unreasonably or capriciously withholding consent in regard

to subleasing.

16. Some people still rely on a handshake to enter into a lease. However, written notice

may be required to terminate the lease. In South Dakota, a farmer may lease

agricultural property through an oral lease.

D. Quotations

1. There is nothing which so generally strikes the imagination and engages the

affections of mankind as the right of property, or that sole and despotic dominion

which one man claims and exercises over the external things of the world, in total

exclusion of the right of any other individual in the universe.

—-Sir William Blackstone (1723–1780), British jurist

2. A house she hath, ‘tis made of such good fashion,

The tenant ne’er shall pay for reparation,

Nor will the landlord ever raise her rent

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Chapter 30 – Real Property and Landlord and Tenant Law

Or turn her out of doors for nonpayment:

From chimney tax this cell is free

To such a house who would not tenant be?

—-17th Century English tombstone

VI. Terms

1. The term riparian rights was coined in 1860. The word riparian comes from the

Latin root ripa, meaning “bank of a river.”

2. The prior appropriation doctrine is also known as the “first in time, first in rights”

doctrine.

3. The origin of the word property is the Latin proprius, meaning own. Its use as a noun

to delineate ownership of items dates to the fourteenth century.

4. Estate comes from the Middle English estat, which is a form of the Latin stare,

meaning “to stand.” It is related to the Greek histani, meaning “to cause to stand” or

“set.” In its oldest known sense, estate implies a rank or standing. In early England,

people were held in low or high estate. Later, estate came to refer to assets and

liabilities, including land, left by a person at death.

5. Lease comes from the Latin laxare, meaning “to loosen.” The owner of leased

property is, in effect, loosening hold on it.

6. Tenant comes from the Latin word for hold. When a landlord lets another person hold

the lease to a building or apartment, that person is known as a tenant.

7. Tenants who hold property under rent control are called statutory tenants because of

the statutes imposing public policy on housing accommodations.

VII. Related Cases stop

1. In the early case of Cooke v. McShane, 142 A. 460 (Conn. 1928), one neighbor

brought suit when another neighbor trimmed a line of trees that functioned as a fence

between the two properties. The trees were 12 feet high and the neighbor trimmed

them to 5 feet. By the time the case got to court, the trees had grown back, healthier

than ever from the pruning. The appellate court recognized that the defendant had

invaded the rights of the plaintiffs, but that there were no actual damages.

2. A husband and wife bought a piece of property that they owned by joint tenancy.

They later divorced; and when the husband died, the estate sued to sell the husband’s

half. The court ruled that after the divorce both parties continued as joint tenants with

the ex-wife owning the whole upon the death of the ex-husband. The language of the

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divorce decree did not indicate an intent to destroy the joint tenancy with right to

survivorship. Porter v. Porter, 472 So.2d 630 (Ala. 1985).

3. Two spouses gave a third person an option to buy property they held in tenancy by the

entirety. However, one of the spouses died before the option was exercised. The court

ruled that because the offer to sell was made by the tenants by the entirety together

and not as individuals, the offer lapsed on the death of one. Beall v. Beall, 434 A.2d

1015 (Md. 1981).

4. Ono purchased land from Coos County under a land sale contract. The contract

required the county to deliver a “good and sufficient quitclaim deed.” When Ono

discovered a mortgage was recorded against the property, Ono sued the county to

recover the amount of the mortgage lien. The court dismissed the suit, stating that the

contract simply required that the deed be in a form adequate to convey whatever title

the county held, without a guarantee of marketable title. Ono v. Coos County, 792

P.2d 476 (Or. Ct. App. 1990).

5. Some college students who had rented an apartment began having trouble paying the

rent after one of the students moved out. The landlord finally evicted them and also

sued them for not only unpaid past rents but also future rents, according to the terms

of the lease. The students had several arguments including that the lease was

unconscionable because the terms so strongly favored the landlord. The court ruled in

the landlord’s favor on the unconscionability issue, however, noting that the students

had read and signed the lease and could have understood its terms. Nyen v. Park

Doral Apartments, 535 N.E.2d 178. (Ind. Ct. App. 1989).

6. In a case of historical interest, a landlord tried to evict an unmarried female tenant on

the grounds that she was using the premises to engage in sexual activity with a male

friend. The court refused to evict, noting that the tenant was not acting illegally, since

this was not a commercial activity and she was not, therefore, participating in

prostitution. Edward v. Roe, 327 N.Y.S.2d 307 (N.Y. Civ. Ct. 1971).

VIII. Teaching Tips and Additional Resources

1. The National Park Service, at http://www.nps.gov/abli/planyourvisit/oaktree.htm,

discusses an oak tree that served as a boundary marker for a farm purchased by

Abraham Lincoln’s father.

2. Potential problems involved with the sale of mineral rights are discussed at

http://geology.com/articles/mineral-rights.shtml.

3. The U.S. Environmental Protection Agency provides information regarding the

Superfund and cleaning up the nation’s most contaminated land at

http://www.epa.gov/superfund/students/clas_act/haz-ed/ff_05.htm.

4. National Public Radio has an article titled “The Trouble With Health Problems Near

Gas Fracking” available at

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Chapter 30 – Real Property and Landlord and Tenant Law

http://www.npr.org/2011/09/29/140872251/the-trouble-with-health-problems-near-gas

-fracking. The EPA also has information about fracking available at

http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydrowha

t.cfm.

5. The National Association of Realtors has information on recent realty news along

with research and statistics numbers at http://www.realtor.org/.

6. An article providing tips on buying property overseas can be found at

http://money.cnn.com/2006/03/23/real_estate/tips/willis_tips/index.htm.

7. An article titled “25 Biggest Real Estate Mistakes” is available from HGTV at

http://www.hgtv.com/real-estate/25-biggest-real-estate-mistakes/index.html.

8. The U.S. Department of Housing and Urban Development has information available

by state in regard to housing and consumer rights at

http://portal.hud.gov/hudportal/HUD?src=/states.

9. The San Francisco Tenants Union has information available on rent control in San

Francisco at https://www.sftu.org/rentcontrol/.

10. A list of federal laws prohibiting housing discrimination along with links to those

laws can be found at

http://public.findlaw.com/civil-rights/housing-discrimination/housing-discrimination-l

aws.html.

11. The U.S. Department of Housing and Urban Development has information for

disabled persons, builders, and housing providers regarding rights of the disabled at

http://portal.hud.gov/hudportal/HUD?

src=/program_offices/fair_housing_equal_opp/disabilities.

12. An interesting article involving zoning disputes and churches titled “Church,

California winery clash: Is ‘mission’ faith or tourism?” is available at

http://www.usatoday.com/news/religion/2010-09-23-wine22_ST_N.htm.

13. USA today has a video on the significant homeless population problem in Hawaii at

http://www.usatoday.com/videos/news/nation/2015/11/09/75439528/.

14. Depending on the age group of the students, consider asking them to choose a home

they would like to purchase from the local newspaper, choose an appropriate down

payment, determine what mortgage payments will be, consider other expenses, and

set a budget. In that way students will get an idea of the amount of income needed

for living expenses.

15. Explain to students that when a boundary tree is used to represent property lines in a

deed or survey, it can be a crime to remove such a tree.

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16. In regard to trees on neighboring property, a neighboring property owner may

generally trim branches and vegetation that cross into his or her property.

17. An article from National Geographic titled “If You Think the Water Crisis Can’t Get

Worse, Wait until the Aquifers Are Drained” discussing groundwater and the water

crisis is available at

http://news.nationalgeographic.com/news/2014/08/140819-groundwater-california-dr

ought-aquifers-hidden-crisis/.

18. Ask students in the class who rent to bring in their lease or rental agreement. Does the

document mention fixtures? Make it clear that fixtures are considered part of the real

property and belong to the landlord or owner of the property.

19. Explain to students that a very important factor to consider in determining

co-ownership of real property is how the type of tenancy is affected by tax laws. For

example, when one person establishes joint tenancy with another, the original owner

may be held liable for gift taxes. Information on gift taxes is available from the IRS

https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Frequently-Aske

d-Questions-on-Gift-Taxes.

20. Explain to students that if a spouse dies, in most states the surviving spouse can elect

to take a statutory share of the estate instead of following the will.

21. Invite a local real estate agent to speak to your class about buying real property. Have

him or her give examples of the mistakes many first-time buyers make in selecting

and purchasing a new home.

22. Divide students into teams and instruct them to obtain copies of surrounding local

zoning ordinances, and zoning maps, if possible and discuss these in class.

23. The right of the state to take property by eminent domain was well established in the

American colonies. Most land was taken to make public improvements, such as to

build roads. However, because land was abundant and cheap, unimproved land was

often taken without consideration. It was not until 1875, in Kohl v. United States, 91

U.S. 367, that the Supreme Court granted the federal government the right to take

property directly in its own name. The Fifth Amendment clause reading “nor shall

private property be taken for public use, without just compensation” was interpreted

by the Court as a concession to take private property, granting the government the

right to secure privately owned land for the building of government structures. Most

constitutional theorists agree that the clause was actually meant as a restriction.

24. Write examples of different types of properties on the board and ask students to

identify which could involve leasing arrangements. Your list might include house,

flat, condominium, co-op, time-share, duplex, apartment, and loft.

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25. Explain to students that a lease is merely a contract. Review the requirements of a

binding contract and apply these requirements to the formation of a lease.

26. Invite a manager of a local apartment complex to discuss problems encountered with

lessees. Ask the manager to explain how to minimize problems both during the lease

period, and at termination time. How can students maximize the chances their

security deposits will be returned?

27. Bring in several differing standard lease forms for students to examine. Ask students

to work in pairs to compare the leases and to make lists of the differing stipulations

they include. After the pairs present their findings to the class, discuss the rationales

behind the different stipulations. Explain that all terms are negotiable and a standard

printed lease can be amended by striking out sections or writing in clauses.

28. Under rent control programs, tenants are allowed to remain in possession of property

without leases. These programs were instituted after World War II by the federal and

state governments when Americans faced severe housing shortages. Today, most rent

control programs are legislated by municipalities. Under rent control programs,

landlords lose some traditional rights, such as the right to determine the amount that

rents will be raised. Laws differ among municipalities, but, under most programs, a

landlord can only raise rents a predetermined percentage each year.

29. Ask student volunteers to contact government officials and tenant associations to find

out about local laws governing rental property, landlord and tenant responsibilities,

subletting, and damages to property. Have the volunteers report their findings to the

class.

30. Invite an attorney with the local Legal Services office to come and speak to your class

about landlord-tenant problems and tenants’ rights. Distribute copies of your local

landlord-tenant laws to the class before the lecture so students will be able to ask

questions.

31. Obtain a copy of the landlord-tenant statutes of your state. Distribute copies of the

statutes to students and use them as guides for a discussion of landlord-tenant laws.

32. Have a student volunteer find out what the repair responsibility requirements are for a

tenant in your state. Then have the student report his or her findings to the class.

33. A landlord has legal access to a tenant’s property to make repairs. When emergency

repairs are needed, such as when a bathroom pipe bursts, a landlord can seek an

injunction against an uncooperative tenant in order to gain access to the property.

Some cities have housing courts to settle such matters.

34. A lessor’s homeowner’s insurance policy does not usually protect a tenant’s

belongings. Tenants can acquire apartment insurance, also called renter’s insurance,

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to protect their personal property.

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