Environmental Engineering Chapter 25 Question What Issues Might Arise Enforcing The

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Chapter 25

PROPERTY

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

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

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?

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

2 Unit 5 Government Regulation and Property

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?

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?

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.

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 included a large cattle scale and veterinarian’s office. The parties used a form

1 237 S.W.3d 285, Missouri Court of Appeals, 2007.

Chapter 25 Property 3

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.

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 two sides of the scale and

fencing to direct the cattle. The metal fence was set in concrete.

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 by 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?

property.

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?

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

Question: What could Freeman have done to avoid this?

Answer: Freeman (or his lawyer) could have taken the time to specify in the purchase and sale

4 Unit 5 Government Regulation and Property

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-

Concurrent Estates

These are the most common concurrent estates:

• 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

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

2 771 N.W.2d 675 (2009) SUPREME COURT OF MICHIGAN

Chapter 25 Property 5

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?

Question: How is joint tenancy different from tenancy in common?

Answer: In a tenancy in common, a tenant may leave the property to his/her heirs whereas in the joint

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

Mortgage

A mortgage is a security interest in real property. The homeowner who borrows money is the mortgagor,

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?

3 14 F.3d 399, 1993 U.S. App. LEXIS 33986 United States Court of Appeals for the Eighth Circuit, 1993

6 Unit 5 Government Regulation and Property

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?

Answer: There was no jury, because the trial court gave summary judgment to AP&L.

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 learning to

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?

Answer: The Johnsons win. The court enjoined the Tropes from interfering with the Johnsons’

ability to park.

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.

4 1995 Colo. App. LEXIS 76 Colorado Court of Appeals, 1995

Chapter 25 Property 7

• If lowering the landscaping enables the Johnsons to park, that will suffice. The Tropes may build

a house over the easement property, provided that the Johnsons are able to park underneath the

structure.

• If lowering the landscaping does not suffice to permit parking, then yes, the Tropes must remove

whatever part of the house blocks access to the easement property.

Question: Would the easement permit the Johnsons to park a tall mobile home or bus on the

easement property?

Answer: Quite possibly. The easement allows a “private, noncommercial vehicle.” As long as the

Land Use Regulation

Nuisance law, zoning ordinances, and eminent domain all permit a government to regulate property and,

in some cases, to take it for public use.

Zoning

Often zoning restrictions are 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

violate the First Amendment:

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’

reliance on isolated comments from several City Council members and other City officials as

8 Unit 5 Government Regulation and Property

Landlord-Tenant Law

When an owner of a freehold estate allows another person temporary, exclusive possession of the

property, the parties have created a landlord-tenant relationship.

Types of Tenancy

Any lease for a stated, fixed period is a tenancy for years. A periodic tenancy is created for a fixed period

and then automatically continues for additional periods until either party notifies the other of termination.

A tenancy at will has no fixed duration and may be terminated by either party at any time. A tenancy at

sufferance occurs when a tenant remains, against the wishes of the landlord, after the expiration of a true

tenancy.

There are four types of tenancy.

• Tenancy for Years: Any lease for a stated, fixed period is a tenancy for years

Additional Case: Elwell v. Minor5

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

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

5 2006 WL 190562, Connecticut Superior Court, 2006

Chapter 25 Property 9

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?

Answer: Because she did not pay the increased rent.

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?

Answer: Because technically, because Minor had a month-to-month lease, once that lease expired,

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?

Answer: Yes.

Question: How is this result fair?

Answer: The court made it clear that the proper law must be followed. Although the issue is the

will or a tenant with a month-to-month lease.

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.

6 Stefanie Shaffer, “Mass. Court Upholds Eviction of Condo Tenants for Smoking,” The National Law Journal, Jul.

8, 2005

10 Unit 5 Government Regulation and Property

If a landlord prevents the tenant from possessing the premises, he has actually evicted her.

Constructive Eviction

Duty to Maintain Premises

In most states, a landlord has a duty to deliver the premises in a habitable condition and a continuing duty

to maintain the habitable condition.

Implied Warranty of Habitability

The implied warranty of habitability requires that a landlord meet all standards set by the local building

Duty to Return Security Deposit

Most landlords require tenants to pay a security deposit, in case the tenant damages the premises. In many

Case: Mishkin v. Young7

Facts: A Colorado statute required a landlord to either return a security deposit or provide an accounting

of why it withheld money. The landlord had to do this within one month of the tenant’s surrender of the

property, or up to 60 days if the lease permitted. If the landlord failed to refund the money, the tenant,

after giving seven days notice, could sue for treble damages. The landlord could avoid the treble damages

by refunding the deposit within those seven days.

Marc Mishkin leased an apartment from Dean Young, paying a security deposit of $1,625. The lease

damages. Mishkin appealed. The appellate court ruled that the Colorado statute required the landlord to

return the full security deposit within the seven-day period. Young appealed.

Issue: May a landlord avoid treble damages by accounting for the security deposit within seven days of

the tenant’s notice to sue?

Holding: Judgment for Mishkin affirmed. Prior Colorado cases implicitly held that a landlord who

failed to account for a security deposit as required by the statute forfeited all rights to withhold any

portion of the deposit and could be liable for treble damages. A landlord may avoid treble damages only

Question: What did the Colorado statute in this case require?

Answer: It required that a landlord do one of two things within one month (or up to 60 days if the

lease so permitted):

7 107 P.3d 393; 2005 Colo. LEXIS 166 Supreme Court of Colorado, 2005

Chapter 25 Property 11

Question: Which of these did Young do?

Answer: Neither.

Question: What were the consequences of his failure to do either?

notice, the landlord failed to return the deposit.

Question: Did Mishkin notify Young that he would sue for treble damages if he did not receive the

deposit?

Question: Did Young return the deposit within the seven days?

Answer: Not exactly. Young sent Mishkin a statement showing $1,574.60 in damages deducted

from the deposit, along with a check for the balance: $50.40.

Question: Did this satisfy the statute?

Answer: No. The court held that the statute required the landlord’s accounting of damages within

Question: Did Mishkin get all of his security deposit back?

Answer: Yes.

Additional Case: Harris V. Soley8

Facts: The tenants (probably students) moved into an apartment that had been condemned and, contrary

to the landlord’s promises, not fixed up. There were mice, roaches, terrible odors, roof leaks, no heat,

broken toilets and more. The landlord failed to repair and the tenants stopped paying rent. The landlord

made various threats; the tenants moved out; the landlord converted some of the tenants’ personal

property and made more threats; and the tenants sued. The landlord was defaulted for failing to respond

to discovery orders.

The jury awarded each tenant $15,000 for emotional distress, plus a total of $1 million in punitive

damages.

Issue: Were the tenants entitled to such large damages.

Holding: Affirmed. The landlord’s various illegal acts were so outrageous as to justify a substantial

award for emotional distress, and a large punitive award.

Question: How can the landlord be defaulted when in fact he was in court, arguing the case?

Answer: The landlord answered the complaint but then failed to cooperate with discovery requests.

Question: Name some or all of the rules of law that this landlord broke.

Answer:

• Quiet enjoyment. The landlord interfered with the tenants’ quiet enjoyment by failing to provide

8 2000 ME 150, 756 A.2d 499 Supreme Judicial Court of Maine, 2000

12 Unit 5 Government Regulation and Property

• Duty to maintain premises. Maine, like most states, requires a landlord to deliver an apartment in

clean and sanitary condition and maintain it in a habitable condition.

Question: Other than that, was the landlord a pretty decent guy?

Answer: Darn right he was.

Tenant’s Duties

Duty to Pay Rent

Duty to Use Premises for Proper Purpose

A lease normally lists what a tenant may do in the premises and prohibits other activities. A tenant may

not use the premises for any illegal activity, such as gambling or selling drugs.

Duty Not to Damage Premises

Duty Not to Disturb Other Tenants

A landlord may evict a tenant who unreasonably disturbs others. The test is reasonableness.

Injuries

Tenant’s Liability

A tenant is generally liable for injuries occurring within the premises she is leasing, regardless of the

nature of the premises.

Landlord’s Liability

Common Law Rules. Historically, the common law held a landlord responsible for injuries on the

premises only in a limited number of circumstances. In reading these common law rules, be aware that