Property

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CHAPTER 31
Property
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Quotes of the Day

• It is a comfortable feeling to know that you
  stand on your own ground. Land is about the only
  thing that cant fly away.
• Anthony Trollope,
• English author
• The manner of giving is worth more than the
  gift.
• Pierre Corneille,
• French playwright

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Nature of Real Property

• The grantor is the conveyor of property the
  grantee is the one receiving it.
• Real property includes
• Land
• Buildings
• Subsurface Rights
• Air Rights
• Plant Life
• Fixtures --an object considered to be a permanent
  part of the property.

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Estates in Real Property

• Rights in real estate usage and ownership vary
  from unrestricted use and right to sell, to a
  lesser right of usage, but not the right to
  transfer it.
• The rights that someone can hold are called
  estates, or interests.

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Freehold Estates

• The owner of a freehold estate has the present
  right to possess the property and to use it in
  any lawful way.
• A fee simple absolute provides the owner with the
  greatest control.
• A fee simple defeasible may terminate upon the
  occurrence of some event.
• A life estate is an estate for the life of some
  named person.

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Concurrent Estates

• A concurrent estate is when two or more own
  property at the same time.
• Tenancy in Common two or more people own the
  property, each with the right to convey her
  interests or to pass it down to her heirs.
• A joint tenancy includes the right of
  survivorship
• All co-tenants have an absolute right to
  partition (division of property).

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Nonpossessory Interests

• An easement gives one person the right to enter
  land belonging to another and make a limited use
  of it, without taking anything away.
• An easement can be created when the landowner
  expressly grants it, when he implies it (such as
  in granting permission to access an area
  accessible only by crossing your land), or by
  necessity (when there is no other way to reach
  the property.)

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Easements, (contd)

• Easement by Prescription
• An easement by prescription happens when someone
  makes use of someone elses property openly,
  without permission and for the number of years
  determined by local statute. If the owner does
  not stop the unauthorized use, the user is
  granted an easement by prescription.

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Nonpossessory Interests (cont'd)

• A profit gives one person the right to enter land
  belonging to another and take something away.
• A license given the holder temporary permission
  to enter upon anothers property.
• A mortgage is a security interest in real
  property, given to the institution loaning a
  buyer the money to buy the real estate.

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Sale of Real Property

• Sellers Obligation Concerning Property
• Most states now impose an implied warranty of
  habitability on a builder who sells a new home.
• The seller of a home must disclose facts that a
  buyer does not know and cannot readily observe,
  if they materially affect the propertys value.

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Sale of Real Property

• A contract for sale of real property must be in
  writing and must include names, description of
  property, price and signatures.
• Before the sale is complete, someone must do a
  title search to ensure there are no other
  claims on this property.
• When all arrangements are made, the parties are
  ready for closing a meeting where the deed is
  signed over to the new owner.
• The deed must then be recorded filed with the
  official state registry.

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Land Use Regulation

• Zoning
• State laws that permit local communities to
  regulate building and land use.
• An owner or builder may seek a variance
  permission to build something that does not fit
  the zoning laws.
• Eminent Domain
• Eminent domain is the power of the government to
  take (at a fair price) private property for
  public use.

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Landlord-Tenant Relationship

• When an owner of a freehold estate allows another
  person temporary, exclusive possession of the
  property, the parties have created a
  landlord-tenant relationship.
• Three legal areas are combined
• An interest in real property is conveyed.
• A lease is a contract.
• Negligence law may be involved also.

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Lease

• The statute of frauds generally requires that a
  lease be in writing.
• Some short-term oral contracts may be
  enforceable, but a written contract is clearer
  and safer.
• A written contract usually includes covenants
  (promises) from the landlord and the tenant
  these details are determined by the parties.

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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.
• 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.

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Landlords Duties

• The landlords first important duty is to deliver
  possession.
• In most states the landlord must remove a
  previous tenant if he does not leave willingly.
• Some states allow the new tenant to either evict
  the old tenant, or collect rent from her.

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Quiet Enjoyment

• All tenants are entitled to the right to use the
  property without the interference of the
  landlord.
• Actual Eviction
• If a landlord prevents the tenant from possessing
  the premises, he has actually evicted her.
• Constructive Eviction
• If a landlord substantially interferes with the
  tenants use and enjoyment of the premises, he
  has constructively evicted her.

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Duty to Maintain Premises

• A landlord has a duty to deliver the premises in
  a habitable condition and to maintain a habitable
  condition.
• Building codes may require stricter than normal
  standards for rental property.
• 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.

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Tenant Remedies for Defective Conditions

• Rent abatement a court ordered reduction in
  rent owed.
• Rent Withholding the tenant refuses to pay part
  or all of the rent, in proportion to the
  defective conditions.
• Repair and Deduct the tenant may, in some
  cases, have the repair made and deduct the cost
  from the rent.
• Suit for Damages in some cases, the tenant may
  file suit against the landlord.

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Duty to Return Security Deposit

• The landlord must return a security deposit
  within 30 days after a tenant vacates.
• If any of the deposit is withheld to pay for
  damage, a written accounting of the damage is
  required.
• If the landlord fails to comply, the tenant is
  entitled to double the deposit amount.

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Tenants Duties

• Duty to Pay Rent this is the tenants foremost
  obligation.
• Landlords Remedies for Nonpayment of Rent
• Apply security deposit to rent.
• Sue tenant for non-payment.
• Evict tenant.

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More Duties and Remedies

• Duty to Use Premises for Proper Purposes
• Duty Not to Damage Premises
• A tenant is liable to the landlord for any
  significant damage he causes to the property.

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Injuries

• Tenants Liability
• A tenant is generally liable for injuries
  occurring within the leased premises.
• Landlords Liability
• The landlord is generally liable for injuries
  occurring in common areas (such as a sidewalk)
  where the tenant has no control.
• Common law holds the landlord liable for latent
  defects and negligent repairs.
• A landlord can sometimes be held liable for a
  crime committed on the property.

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Gifts

• A gift is a voluntary transfer of property from
  one person to another without any consideration.
• A gift involves three elements
• The donor intends to transfer ownership of the
  property to the donee immediately.
• The donor delivers the property to the donee.
• The donee accepts the property.

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Delivery

• Physical Delivery method usually used to
  deliver the gift.
• Constructive Delivery -- made by transferring
  ownership without a physical delivery.
• Delivery to the donees agent is a valid gift
  delivery to the donors agent is not.

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Inter Vivos Causa Mortis

• An inter vivos gift is a gift given during life
  and with no expectation of death.
• The gift is valid, if it meets the basic
  conditions of a gift.
• A gift causa mortis is a gift given in
  expectation of dying soon.
• The gift is valid, if it meets the conditions of
  a gift, and the giver dies as expected.
• The giver may rescind the gift at any time, and
  it is automatically rescinded if the giver does
  not die as expected.

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Bailment

• A bailment is the rightful possession of goods by
  one who is not the owner.
• The parties generally-but not always-create a
  bailment by agreement.
• A bailment without agreement is called a
  constructive, or involuntary, bailment.
• To create a bailment, the bailee must assume
  physical control with intent to possess.

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Rights Duties of the Bailee

• Anyone who interferes with the bailees rightful
  possession is liable to her.
• The bailee is typically, though not always,
  permitted to use the property.
• The bailee is strictly liable to redeliver the
  goods on time to the bailor or to whomever the
  bailor designates.
• The bailee must exercise due care.

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Due care

• The level of care required depends upon who
  receives the benefits of the bailment.
• Extraordinary care of the property is required
  when the bailment is for the sole benefit of the
  bailee (as when a neighbor borrows your tractor.)
• Ordinary care is required in the case of mutual
  benefit (renting a car at a cost.)
• Slight care is all that is required when only the
  bailor benefits. The bailee is liable for loss
  only in gross negligence.

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Burden of Proof

• Once the bailor has proven the existence of a
  bailment and loss or harm to the goods, a
  presumptive of negligence arises, and the burden
  shifts to the bailee to prove adequate care.

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Rights and Duties of Bailor

• Liability for Defects
• If the bailment is for the sole benefit of the
  bailee, the bailor must notify the bailee of any
  known defects.
• In a mutual-benefit bailment, the bailor is
  liable not only for known defects but also for
  unknown defects that the bailor could have
  discovered with reasonable diligence.

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Real property is ancient in origin and
terminology, but every bit as potent as it was
1,000 years ago.