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Suggested Additional Assignments
Drafting Exercise: Deeds
Have students draft one deed that conveys a realistic fee simple defeasible in a valuable parcel of
property, and another deed that conveys a life estate and a remainder.
Research: Zoning
Students should use the Internet to find an article that addresses some unique uses of zoning laws, such as
trying to prevent a large retailer from opening in a small town, or trying to prevent an adult
entertainment business from opening, or trying to prevent a large residential and/or commercial
development. What is the real reason people oppose the project? Does it have anything to do with
zoning? Is it fair to use these laws to prevent “undesirable” businesses from locating in the area?
Field Work: Warranties
Students should tour a development of new homes, co-ops, or condominiums, and obtain as much
information as possible about warranties: what is warranted, by whom, against what defects, for how
long, etc.
Research: Condominiums/Co-ops
Students should use the Internet to find a news article, Web site, interview, or other document describing a
dispute about the governing powers of a co-op board or condominium association. One Web site is
http://www.meislik.com/articles/art03.htm. Disputes might concern, for example, a seller who is angry
because a co-op board has rejected a possible buyer, a condominium owner who is upset over the board’s
restrictions on his life style, and so forth.
Field Work: The Registry of Deeds
Students should visit the local Registry of Deeds and research the title to a parcel of land using the grantor
and grantee indexes.
Research: Lease Terms
Ask students to read their leases carefully, noting the following things in particular:
What, if any, warranties does the landlord make as to the unit’s condition?
What does the lease say about quiet enjoyment?
What obligations does the lease impose on the student?
Under what circumstances may the landlord evict the student?
What steps must the landlord take before commencing an eviction action?
What, if anything, does the lease say about liability for personal injuries suffered in the
apartment? In the common areas?
Students should then bring the leases into class, and discuss the clauses referring to these issues.
Research: Lease Law
Students should go to the Web site http://www.rilin.state.ri.us/statutes/title34/34-18/INDEX.HTM where
they will find a typical state landlord-tenant statute, conveniently labeled and easy to navigate. Students
should check the provisions of the statute that correspond to the issues raised in the Lease Terms research
exercise above. For example, as to the landlord’s warranties, students should see what the statute
demands of the landlord and then compare the statutory requirements with the lease provisions. Students
should do this for each of the topics indicated. How do the two differ? Are any provisions illegal or
inadequate under the law? Based on the statute, students should draft what they regard as a neutral, fair
lease.
Field Work: Interviews
Divide students into small working groups, whose job is to learn more about the relationship between
landlord and student-tenant by interviewing the respective parties. The groups should interview as many
landlords and students as possible. Ask the landlord questions such as:
What are the good things that happen when you rent property to students?
What are the worst problems that occur when you rent property to students?
Describe the ideal tenant.
Describe the nightmare tenant.
What change in the landlord-tenant law would you like to make, and why?
Have you ever had to go to court against a student tenant?
In your view, what is the reputation of landlords locally? Good, bad, indifferent? Is the
reputation justified or unfair? Why?
Ask the students analogous questions.
Research: Implied Warranty of Habitability
Have students research their state’s law regarding a landlord’s warranty of habitability in residential
tenancies. Does state law imply this warranty in all residential leases, whether stated in the lease or not?
What is the legal standard to determine whether the landlord has breached the warranty? What rights
does a tenant have if the landlord has breached this warranty? Can the tenant use a self-help remedy such
as withholding rent?
Chapter Overview
Chapter Theme
Real property law is ancient in origin and terminology, but every bit as potent as it was 1,000 years ago.
Landlord-tenant law combines property, contract, and negligence principles into one important and
fast-changing field.
Quote of the Day
“It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that
can’t fly away.” –Anthony Trollope (1815-1882), English author, The Last Chronicle of Barset.
Nature of Real Property
Property falls into three categories: real, personal, and intellectual. Real property, which is the focus of
this chapter, consists of land (including subsurface and some air space), buildings, plant life, and fixtures.
Fixtures
Case: Freeman v. Barrs1
Facts: Mary Ann Barrs paid $3.5 million to Francis Freeman for a 4,000 acre ranch, including a covered
“pole-barn” which had open sides, a large cattle scale, and an enclosed veterinarian’s office. The parties
used a form contract, which stated that all fixtures were included with the sale. The document offered
space for the parties to specify what fixtures were included, but neither party listed the cattle scale as
either in or out of the deal After the agreement went through, Barrs and Freeman got into a beef over who
owned the scale. The trial judge grilled numerous witnesses and ultimately weighed in on the side of
Barrs, declaring the scale a fixture that belonged to the real estate. Broiling, Freeman appealed.Issue:
Was the cattle scale a fixture?
1 237 S.W.3d 285, Missouri Court of Appeals, 2007.
Holding: Yes, judgment for Barrs affirmed. Steven McFadden the maker of the scale, testified that the
scale was made to be portable, and that 70% of the scales he sold were installed in the present manner.
He testified that he would remove the scale by cutting away a welded metal fence and lifting the scale
with heavy machinery, a process he often performs. McFadden testified that cutting the fence would take
approximately one hour and moving the scale would take about fifteen minutes.
According to the court, characterization of an item as a fixture depends upon three elements:
annexation to the realty, adaptation to the use to which the realty is devoted, and intent of the annexor that
the object become a permanent accession to the freehold. Adaptation and intent are more important in
determining whether a chattel becomes a fixture.
Annexation: The scale weighs approximately 6,500 pounds. A fence and gates within the structure
had to be cut off in order to install the scale. The scale was placed on pipes and moved with a tractor to a
concrete slab poured to support the scale. Concrete ramps were installed on wither side of the scale and
fencing to direct the cattle. The metal fence was set in concrete.
Adaptation: Ray Stone, the ranch manager testified that the scale was integral to a cattle-working
facility. The scale was used to weigh cattle for sale and to determine required dosages of medicine.
Intent: The manufacturer sold peripheral items that permitted the scale to be moved, such as a trailer
and an inverter. Barrs did not buy any of them. Stone testified that the scale was purchased “to be
stationary whether it was potable or not.”
The court concluded that the scale was a fixture. The court based its conclusion on the fact the scale
was placed on a specially sized concrete slab and surrounded be metal fencing set in concrete, thus the
scale was annexed to the property. The permanency of the installation was emphasized by the fact that
there was a veterinarian’s office in which the printer of the scale could be operated. The scale was put in
place to facilitate the cattle operation on the premises and had been used for that purpose since its
purchase. Its adaptation for that purpose enhanced the operation of the cattle ranch.
Question: What is a fixture?
Question: The manufacturer of the scale testified that the scale was designed to be moveable, why was
this not enough for the court to find that the scale was not a fixture?
Answer: According to the court, although the manufacturer may have designed the scale to be moveable,
Question: What facts did the court rely on the show the scale had been adapted to become a permanent
part of the property?
Answer: The court noted the testimony of Ray Stone, the manager for the Plaintiff. Stone testified that
the scale was integral to the working of a cattle facility, the scale was used to weigh cattle for sale and it
Question: What could Freeman have done to avoid this?
Estates in Real Property
Drafting Exercise: Deeds
If students completed the deed drafting exercise, this is a useful place to discuss it. The clauses creating a
fee simple defeasible interest and a life estate and a remainder interest can each be one sentence long.
Fee simple defeasible: Sam conveys to Mark for as long as Mark operates the facility as a
frog-jumping emporium.
Life estate and remainder: Beth conveys to Ling-Ling for her life, and then to the Policeman’s
Benevolent Association.
Concurrent Estates
When two or more people own real property at the same time, they have concurrent estates. The most
common forms of concurrent estates are tenancy in common, joint tenancy, and tenancy by the entirety.
A tenancy in common is the most common form of concurrent estate. Tenants in
common have equal proportionate interest in the entire property: if there are two tenants in
common, each has a 50% interest in the property; if there are 20 tenants in common, each as a 5%
interest in the property. All co-tenants have an absolute right to partition, or division of the
property.
A joint tenancy gives the parties—joint tenants—proportionate ownership of the property,
an absolute right to partition, and the right of survivorship. When one joint tenant dies, his
interest passes automatically to the surviving joint tenants.
A tenancy by the entirety gives a husband and wife ownership of the entire property, with
the right of survivorship.
Case: Jackson v. Estate of Green2
Facts: Green and Jackson owned land as joint tenants. Green filed a petition asking a court to partition
the parcels, but he died while the partition was still pending.
The lower courts found that because the partition was not complete at the time of Green’s death, the
land reverted to Jackson.
Green’s estate appealed.
Issue: Does filing for the partition of a joint tenancy terminate survivorship rights?
Excerpts from Justice Corrigan’s Decision:
We agree with the Court of Appeals that defendant’s interest in the parcel of land automatically
reverted to plaintiff when defendant died. Thus, defendant’s estate has no interest in the property, and
even if defendant’s partition action survived his death under Michigan’s survival statute, nothing remains
to partition.
The principal characteristic of the joint tenancy is the right of survivorship. Upon the death of one
joint tenant, the surviving tenant or tenants take the whole estate. An ordinary joint tenancy may be
severed, and the right of survivorship thereby destroyed, by an act of the parties, conveyance by either
party, or levy and sale on an execution against one of the parties.
A party can sever a joint tenancy by compelling a partition. Until an order of partition has been
entered, however, a partition has not been compelled and, thus, the joint tenancy has not been severed. It
is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such
action which has that effect.
This rule is based on two related concepts: First, the theory of survivorship-that at the moment of
death, ownership vests exclusively in the surviving joint tenant or tenants-and second, the doctrine that
severance of the joint tenancy does not occur until the partition suit reaches final judgment.
Accordingly, we would hold that the filing of the partition action did not sever the joint tenancy
because an order effectuating a partition had not entered at the time of defendant’s death. Therefore,
regardless whether defendant’s partition action survived his death under the survival statute, his interest in
the parcel of land did not.
Affirmed.
Question: What is the effect of a joint tenancy?
2 771 N.W.2d 675 (2009) SUPREME COURT OF MICHIGAN
Future Interests
A property owner may convey less than all of his rights to another person. For example, if Andrew has a
fee simple absolute in Serenity Farm, he may convey a life estate to Claire, meaning that Claire gets the
property only for her life. The remaining rights in the land are called future interests.
Nonpossessory Interests
All of the estates and interests that we have examined thus far focused on one thing: possession of the
land. Now we look at interests that never involve possession. These interests may be very valuable, even
though the holder never lives on the land.
Easements
An easement gives one person the right to enter land belonging to another and make a limited use of it,
without taking anything away.
profit
A profit gives one person the right to enter land belonging to another and take something away.
License
A license gives the holder temporary permission to enter upon another’s property. Unlike an easement or
profit, a license is a temporary right.
Mortgage
A mortgage is a security interest in real property. The homeowner who borrows money is the mortgagor,
because she is giving the mortgage to the lender. The lender, in turn, is the mortgagee, the party acquiring
a security interest.
Additional Case: You Be the Judge: Carvin v. Arkansas Power and
Light3
Facts: Between 1923 and 1947, Arkansas Power & Light (AP&L) constructed dams on two Arkansas
lakes, Hamilton and Catherine. The company obtained “flood easements” on property adjoining the
lakes. The easements permitted AP&L to “clear of trees, brush and other obstructions and to submerge by
water [the adjoining land].” AP&L properly recorded its easements.
In May 1990, extraordinarily heavy rains fell, and water reached the highest levels ever recorded. AP&L
opened the gates of one dam, called Carpenter, causing water to rise 25 feet. This flood caused massive
damage to the landowners’ real estate. Several dozen landowners sued, claiming that AP&L was
negligent in opening the dam and in failing to warn homeowners of their intended action. The United
States District Court granted summary judgment for AP&L, and the landowners appealed.
You Be the Judge: Did the easements relieve AP&L from liability for flooding?
Holding: Judgment for AP&L affirmed. The easements were very clear and were designed to allow
AP&L to do precisely what it did. The company’s alleged negligence is irrelevant; it purchased the right
to flood land in an emergency, and a storm of this magnitude qualified as an emergency. Although the
suffering was great, the company had no liability because of its easements.
Trick Question: The plaintiffs presented an affidavit from a water control expert, Dr. Daryl B.
Simmons, stating that AP&L operated the dams in an unreasonable, negligent manner, did not
properly monitor the water levels on the two lakes, and failed to coordinate the opening of the flood
gates on the respective dams. What was the jury’s impression of the expert’s opinion?
3 14 F.3d 399, 1993 U.S. App. LEXIS 33986 United States Court of Appeals for the Eighth Circuit, 1993
Question: How can it be fair to decide this case without even considering the opinion of an expert
who said the defendants were negligent?
Question: Why does it not matter whether AP&L was negligent?
Answer: AP&L purchased the right to flood the land. That was the whole purpose of the easement.
Question: The landowners also argued that what AP&L really had were exculpatory clauses. What
is an exculpatory clause?
Question: The landowners argued that the law often disfavors exculpatory clauses as a matter of
public policy, and the court should therefore refuse to enforce these agreements. Comment.
Answer: The argument fails.
Exculpatory clauses exist in contracts between two parties. For example, a student
Here, AP&L purchased an interest in real property. This is much more than just a
Additional Case: Hornsilver Circle, Ltd. v. Trope4
A couple owned two adjoining lots in Vail Village, Colorado, lots 9 and 7. The couple sold lot 7 to a
buyer, keeping an easement on part of lot 7. The easement allowed the owner of lot 9 to use the
designated part of lot 7 for parking private, noncommercial vehicles. The couple later sold lot 9 to the
Johnsons, and the owner of lot 7 sold it to the Tropes.
The Tropes built a house on lot 7, cantilevering it over part of the easement property. They landscaped
their lot, raising the level of the easement property. Between the cantilevered house and the raised
landscaping, it became impossible for the Johnsons to drive a car onto their easement property. The
Johnsons sued, seeking to enjoin interference with their easement.
Question: How would you rule?
Question: Does this mean that the Tropes have to tear down their house?
Answer: It means they must do whatever is necessary to enable the Johnsons to park.
If lowering the landscaping enables the Johnsons to park, that will suffice. The Tropes
If lowering the landscaping does not suffice to permit parking, then yes, the Tropes must
Question: What issues might arise in enforcing the injunction?
Question: Would the easement permit the Johnsons to park a tall mobile home or bus on the
easement property?
4 1995 Colo. App. LEXIS 76 Colorado Court of Appeals, 1995
Answer: Quite possibly. The easement allows a “private, noncommercial vehicle.” As long as the
Adverse Possession
The doctrine of adverse possession is analogous to easement by prescription. Under certain conditions,
easement by prescription permits a person who makes use of land continuously to establish an easement
for that use. Adverse possession goes even farther and allows someone to take title to land if she meets
certain tests. In most states, to gain ownership of land by adverse possession, the user must prove:
Entry and exclusive possession
Open and notorious possession
A claim adverse to the owner, and
Continuous possession for a statutory period.
Case: Ray v. Beacon Hudson Mountain Corp.5
Facts: In 1931, Rose Ray purchased a cottage in a mountain-top resort town in the Adirondacks,
agreeing to rent the land on which the structure stood. The long-term lease required her to pay the real
estate taxes and provided that when the tenancy ended, the landlord would buy back the cottage at fair
market value. In 1960, the landlord terminated the lease of everyone in the town, so Ray and all other
residents left. She died in 1962, without ever getting a penny for the cottage. The next year, Mt. Beacon
Incline Lands, Inc. bought all rights to the abandoned 156-acre resort.
Robert and Margaret Ray, the son and daughter-in-law of Rose Ray, reentered the cottage and began
to use it one month per year, every summer from 1963 to 1988. They paid taxes, insured the property,
installed utilities, and posted “no trespassing” signs.
In 1978, Beacon Hudson bought the resort in a tax foreclosure sale. Finally, in 1988, the Rays filed
suit, claiming title to the cottage by adverse possession. Beacon Hudson counter-claimed, seeking to eject
the Rays. The trial court ruled for the couple. The appellate court reversed, stating that the Rays had
been absent too frequently to achieve adverse possession. The Rays appealed to New York’s highest
court.
Issue: Did the Rays acquire title by adverse possession?
Holding: Judgment for Rays affirmed. The requirement of continuous possession is satisfied when the
adverse claimant’s acts of possessing the property are consistent with acts of possession that ordinary
owners of similar properties would undertake. The plaintiffs’ actual summertime use for a full month
each season, coupled with their repeated acts of repelling trespassers, improving, posting, padlocking and
securing of the property in their absences throughout the statutory period, demonstrated their continuous
dominion and control over, and thus possession of, the property. The Rays obtain title by adverse
possession.
Question: This case is based on the doctrine of adverse possession. What is that?
Question: What are the requirements?
Answer: To gain ownership of land by adverse possession, the user must prove:
5 88 N.Y.2d 154, 666 N.E.2d 532, 1996 N.Y. LEXIS 676 Court of Appeals of New York, 1996
Question: This is crazy! Why should someone get title to land by cheating?
Question: This case perfectly proves the merit of the policy. How?
Answer: For nearly 30 years, various corporations permitted a once-thriving resort community to
Question: But the rule requires the possessor to demonstrate continuous possession for the statutory
period. This family only showed up in fair weather, for a month.
Answer: This is a summer holiday home, and no one stays in such a house all winter. The court
Land Use Regulation
Zoning
Ethics
Page 1100 focuses on zoning restrictions designed to curb “adult” businesses, such as strip clubs,
pornography shops, and so forth. If students found articles discussing a recent controversial use of
zoning laws, here would be an appropriate place to discuss their findings.
Question: Are such ordinances good or bad?
Answer: The primary argument against such zoning restrictions, of course, is that they violate First
Amendment rights. Plaintiffs attacking such regulations typically claim that the local government is
attempting to regulate the content of speech by suppressing sexual material. This is wrong, they
In view of the legislative record upon which the City Council rested its decision to regulate adult
uses, we agree with the courts below that enactment of the Amended Zoning Resolution was not
an impermissible attempt to regulate the content of expression but rather was aimed at the
negative secondary effects caused by adult uses, a legitimate governmental purpose. Plaintiffs’
The test is not whether the regulated establishments are defined without reference to content but whether
Landlord-Tenant Law
Types of Tenancy
There are four types of tenancy.
Tenancy for Years: Any lease for a stated, fixed period is a tenancy for years.
Periodic Tenancy: A periodic tenancy is created for a fixed period and then automatically
continues for additional periods until either party notifies the other of termination.
Tenancy at Will: A tenancy at will has no fixed duration and may be terminated by either
party at any time.
Tenancy at Sufferance: A tenancy at sufferance occurs when a tenant remains on the
premises, against the wishes of the landlord, after the expiration of a true tenancy.
Case: Elwell v. Minor6
Facts: Winfield Elwell orally agreed to rent Lucille Minor an apartment on a month-to-month basis. The
rent was $575, and four years later was increased to $625, and the next year was increased to $650.
Minor tendered $625 and included a letter explaining that she did not want to pay the increased rent for
September or October. Elwell rejected the payment, Minor then tendered a check a second time, and
Elwell returned it.
Elwell told Minor to pay $650 or vacate. Minor did neither, so Elwell began eviction proceedings
and served a Notice to Quit for non-payment of rent. At trial, Minor argued that non-payment of rent was
an improper ground for evicting a tenant at sufferance, and asked the court to dismiss the case.
Issue: May a landlord evict a tenant at sufferance for non-payment of rent?
Holding: No, the court dismissed the action. During the months of September and October the
communications between Minor and Elwell reveal a definite dispute, which precludes the formation of a
new one-month lease. Because Minor remained in possession of the premise without a new monthly
contract, she should be treated as a tenant at sufferance, a holdover occupying the apartment without the
legal right to do so.
Nonpayment of rent is not proper grounds for the eviction of a tenant at sufferance because a tenant at
sufferance is not required to pay rent but only use and occupancy. The law treats a month-to-month lease
as a series of individual leases which expire at the end of the month and are ordinarily renewed each
month by implication, once the agreement expires, the tenant’s obligation to pay rent transforms into an
obligation to pay a reasonable sum for the use and occupancy of the premise. Without an obligation to
pay rent, there can be no eviction for nonpayment of rent. The proper basis for pursuing eviction
proceedings against a tenant who failed to pay a reasonable sum for use and occupancy would be that the
tenant originally had the right to occupy the premise but such right has terminated. Elwell’s second notice
to quit is defective because it cites improper grounds for evicting a tenant at sufferance, and thus deprives
the court of subject matter jurisdiction in the eviction proceeding.
Question: What is a notice to quit?
Answer: A notice to quit is the document that a landlord must serve on a tenant before beginning an
Question: Why did Elwell serve Minor with a notice to quit?
Question: Can a landlord begin eviction proceedings against a tenant for nonpayment of rent?
Question: If that is the case, why did the court dismiss the case?
6 2006 WL 190562, Connecticut Superior Court, 2006
Answer: Because technically, because Minor had a month-to-month lease, once that lease expired,
there was no lease in place. Ms. Minor was a tenant at sufferance once Elwell did not renew her lease
Question: What is “use and occupancy”?
Answer: “Use and occupancy” is when a person is using and occupying a premise without a lease,
Question: Isn’t that the same thing as rent?
Answer: It looks like it. But the court in this case made it clear that Elwell can only seek eviction
Question: So, even though Minor did not pay her rent, or use and occupancy, Elwell’s case was
dismissed?
Question: How is this result fair?
Answer: The court made it clear that the proper law must be followed. Although the issue is the
Landlord’s Duties
Duty to Deliver Possession
The landlord’s first important duty is to deliver possession of the premises at the beginning of the tenancy.
Quiet Enjoyment
All tenants are entitled to quiet enjoyment of the premises, meaning the right to use the property without
the interference of the landlord. Courts can also find activities of other tenants, if the landlord allows
them to continue to disturb neighbors, to breach the landlord’s covenant of quiet enjoyment.
For example, a Massachusetts court upheld the eviction of two tenants because secondhand smoke from
their cigarettes seeped into neighboring units and disturbed other tenants. The evicted tenants’ lease did
not include a no-smoking clause, and the landlord had said they could smoke in their apartment.
Nevertheless, the court held that their second-hand smoke breached the other tenants’ covenant of quiet
enjoyment and gave the landlord the right to evict them.7
Constructive Eviction
If a landlord substantially interferes with the tenant’s use and enjoyment of the premises, he has
constructively evicted her. For a constructive eviction to occur the landlord’s interference with the
tenant’s use and enjoyment must be so substantial as to cause the tenant to leave the premises.
Duty to Maintain Premises
Implied Warranty of Habitability
The implied warranty of habitability requires that a landlord meet all standards set by the local building
code, or that the premises be fit for human habitation. If students completed the research on the implied
warranty of habitability, they should present their results now.
7 Stefanie Shaffer, “Mass. Court Upholds Eviction of Condo Tenants for Smoking,” The National Law
Journal, Jul. 8, 2005
