Property outline
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| Partitions = ct. orders to dissolve co-ownership, granted regardless of parties’ justification/fault. Gives co-tenants automatic right to terminate cotenancy/exit at any time.
A. partition by sale of entire property Preferred partition type for personal property and urban land, which cannot practically be divided into parts thru partition in kind Prioritizes objective value of land over owners’ subjective/idiosyncratic value B. partition in kind – phys. division of property between co-tenants preserves co-owner’s subjective value for property – esp. when co-owner lives on the property Factors cts. consider in deciding upon partition method: [1] Practicability of partition by sale, [2] equitable interests of parties Ex. Delphino – partition in kind =best method to preserve co-owner’s subjective value of home & business on the land, esp. when she (a) had exclusive & actual possession of her part of the land (b) for a long time….even if partition by sale would be more profitable. (subtext: Lockean/labor theory; equity ) Tenancy in common vs. Joint Tenancy A. Tenancy in common: *** no rights of survivorship for co-owners.** When owner dies, his interest goes to his heirs, NOT co-owners. Ex 1- , C,D, E. own property as tenants in common. C dies and C has heir. No rights of survivorship C’s ownership interests goes to his heirs. Ex 2 –Both C & D die, and both have heirs. Thus co-owners are now C’s heir, D’s heir, and (still) E. Drafting need not specify “tenancy in common”- “To A & B” is suffic. Tenants CAN have diff interests- Ex. A can have life estate & B can have fee simple Appropriate for non-intimate/familial relations Either tenant CAN unilaterally convey interest to 3d party Creditors- Property can be attached by creditors of each individual tenant B. Joint tenants: **ARE rights of survivorship for co-owners Ex 1- C,D, E. own property as joint tenants. C’s interest disappears when he dies, and co-owners B & D become full owners (co-owners’ heirs irrelevant) Drafting MUST SPECIFY joint tenancy- “To A & B as joint tenants, w/ rights of survivorship” – must specify in drafting more than TiC. Restrictions- Interests must be created within “unities” 1. Time- interests of both joint tenants must begin at same time 2. Title- both joint tenants must have received interests by same instrument/doc. (or act of averse possess.) 3. Interest- joint tenants must have same type of interest (fee simple, life estate, etc.) that lasts for same duration 4. Possession – each J.T. must have right to possess the whole property **If any unity “severed,” then the JT becomes a TiC. Does lease by 1 joint tenant sever joint tenancy? Cts. are split- some say yes, some say no. Transferring joint tenancy- Each joint tenant can unilaterally transfer interest while they are living (& thus may have his interest attached by creditors) This may sever unity of possession turn interest into TiC ONLY APPROPRIATE FOR INTIMATE RELATIONSHIPS- committed relationship or family business Marital Interests 1. Marriage Dissolution: Death or Divorce Property split regimes: A. Community Property Jd.- (minority) Bright line/automatic rule - Upon divorce OR death, 50/50 split in marital property = property acquired by effort of one or both partners – Consent - Major decisions – sale of property, mortgage, require consent of both spouses Presumption of community property – but property belonging to spouses pre-marriage/sometimes bequests considered separate property. However, such separate property can lose that status/become community property if the property is sufficiently comingled w/ marital assets B. Common Law Jd. (maj.) Equitable standard, not bright-line- Marital property subject to equitable division upon divorce, based on fairness/ circumsts- needs, expectations, contributions based on fair distribution of property Fault – irrelevant in post-divorce property division Effect of intestacy- If someone dies w/o will, intestate, surviving spouse takes all or most of deceased spouse’s property If 1 spouse dies with his own will, that spouse can make some other disposition of property aside from leaving it to spouse. 2. Forced spousal share statutes if spouse dies w/o children, & w/ a will, but leaves property the spouse- regardless of what will says, cts. presume spouse entitled to 1/3 Policy: take care of gender inequity in marriage (women) 3. Is human capital of 1 spouse “marital property property” subject to division upon divorce (ex. degrees)? Cts. are split. Obrien- Ct. reads NY statute defining marital property as “all property acquired by either or both spouses during marriage” broadly to include husband’s med school degree, which wife her career for / contributed to by supporting husband during his studies Valuation issues: hard to measure value of human capital/intangible assets b/c Hard to predict how successful spouse will be in given field Hard to extrapolate lifetime earnings of one spouse based on ave. earnings of similarly situated person in the field Doesn’t take into account poss. contingencies affecting income- What if surgeon breaks his hand? What if spouse wants to change to lower-paying career? **May incentivize high-earning spouse to not work hard /choose less lucrative sub-field out of spite for ex-spouse 4. Should cts. enforce contractual relationships of non-married couples upon dissolution of relationship? Marvin: Held: P/Mistress of Mr. Marvin did state a claim for breach of K Facts: P, Mr. Marvin’s mistress, lived w/ him; they behaved as a married couple P alleges implied oral agreement that they would share equally in property accumulated as a result of their efforts, individual and P said she agreed to give up her “lucrative career as entertainer” to devote herself to Mr. Marvin as homemaker Reasoning: Ct. rejects “K is void b/c only consideration is sex” arg. Express Ks between nonmarital Ks often comprise sex, but also include other things partners give up/invest in relationship as consideration. Entity Property Entity Property Principles: Permit management of entityt resources to be separated from their use and enjoyment Separation allows specialists to focus on managerial/governance function, so use and enjoyment of property can be distributed among larger group of people Leases 1. Lease Principles Financing Device – doesn’t require long-term investment Risk-spreading device Allow for specialization: Ts specialize in using/enjoying/possessing individ. units; LLs specializes in maintaining common areas Both property (numerus clausus) & K (customization) elements 2. Numerus clausus app.- fixed menu of lease options A. Term of Years Duration Fixed endpoint; Usually for 1 or more years Notice of termination?: NO. Neither landlord (LL) nor tenant (T) required to give notice to the other before terminating LL/T relationship B. Periodic Tenancy Duration: Automatically rolls over for stated period of time, usually year-to-year ORmonth-to-month Ex. lease from year to year = periodic tenancy that automatically rolls over 1 year at a time (also can be on month to month basis) Notice of termination?: YES. LL/T parties must give notice to the other to terminate lease. A. If year-to-year [a] 6 mo. notice required at C.L…..[b] but modified in many jds. to one month’s notice B. if month-to-month 1 mo. notice required C. Tenancy at will Duration: Lasts only so long as both parties wish it to continue. Either party can term. At any time for any reason Notice of termination? A. At C.L. – no notice was required B .Modern - Many jds. have statutes requiring notice equal to period of time at which rent payments are made 4. Ex. of tenant that violates numerus clausus/does not fit into any of these fixed menu options for leases: “I lease to you this warehouse for duration of the war.” D. Tenancy at sufferance Situation where individ. who was once in rightful possession of property holds over after lease has ended Contrast w/ trespasser: Tenant at sufferance’s original entry was not wrongful LL’s remedy- LL free to evict tenant at sufferance using A. Forcible entry + detainer statutes; or B. Bringing action in ejectment 3. Doctrine of Constructive eviction (protects tenants) Policy: Protects tenants faced w/ intolerable conditions created by LL’s breach of covenant to repair, provide heat, or control behavior of other tenants Effects on Tenants’ duties: If breach of LL’s implied covenant of quiet enjoyment actually prompts T to vacate premises excuses T’s further rent payments. (treated like actual eviction.) LL nonfeasance vs. misfeasance Constructive eviction – A. misfeasance- if LL’s breach is sufficiently serious to cause reasonable T to vacate T excused from further rent payment B. Nonfeasance- Ex. Blackett- by failing to control problem of noisy club tenants disturbing residential tenants, LL constructively evicted residential tenants by violating covenant of quiet enjoyment. Lease had express cl. that lounge activities had to be conducted so as not to disturb residents. T’s success hinges on whether LL violated express cl. in lease through his nonfeasance/failure to act 4. Doctrine of Surrender (protects tenants) T abandons property by (1) vacating, (2) w/ no intention to ever return, and (3) stop paying rent = implied “offer” to surrender leasehold estate L implicitly “accepts” surrender of leasehold estate: …By responding to T’s offer w/ action inconsistent w/ the T’s continuing right to the leasehold interest Ex. LL taking T1’s proffered keys Ex. LL rentering T1’s unit & reletting to T2 Effect on T’s rights/ duties- L’s acceptances releases T1 from any remaining lease obligations implied as a matter of law When ct. finds L has “ accepted” T’s surrender, then T liable for full amt. of rent owed up to the moment of acceptance, but is off the hook thereafter Ex. In re Kerr- Absent express provision in lease authorizing L to reenter & relet T1’s unit, L’s creation of new lease w/ T2 = implicit acceptance of T1’s surrender of T1’s lease/ releasing of T1 for rent liability Effect on T of Reenter & relet cl. (protects LL)T still responsible for unpaid rent (minority approach) 5. Modern Bilateral K-law Lease Model A. Options for Ts if LL materially breaches express lease terms? (Medico-Dental) 1. Remain in possess. + sue for damages from lost profits by reason of breach – Paradine 2. Rescind lease, claim material breach rising to level of total breach, & deny any further obligation to pay – Medico Dental 3. Rescind lease, claim material breach, deny any further oblig. to pay, AND sue for damages B. Implied Warrantees of Habitability (IWHs) in Residential Leases **Ts cannot waive IWH!! Policy: Pro-tenant - Protects tenants from bad housing conditions in violation of local health codes; Pro- consumer- Narrows info. gaps between T (buyer) and LL (seller) considering unequal bargaining power Remedies for T if L violates Implied Warr. of Habitability in residential lease (IWH) (Javins) 1. Refuse to pay rent 2. Sue L for damages for breach of IWH 3. Sue for spec. performance forcing L to bring property up to code, in compliance w/ IWH 4. Sue for damages = diminution in unit’s rental value since L’s breach of IWH; then pay rent into escrow acct. C. LL’s Duty to Mitigate Dam’s (K concept) LL must make effort to mitigate dam’s of T’s breaches by reasonably trying to find new T. Factors - Did LL fulfill burden to take reasonable steps to mitig. damages? (1) Did LL show apt. to any new tenants? (2) Did LL advertise apt. vancacy? (3) Did he LL at least attempt to show apt. to suitable replacement Ts, who were rejected? (Deducted from LL’s recovery) Transfers of Leasehold Interests Leasehold Transfer- Principles Leases generally like bilateral Ks- parties can incl. any promises they want (customizable) Exception : If LL or T transfers their interest to 3d party, shift to standardization T can only transfer assignment or sub-lease 1. Orig. Tenant’s (T1’s) right to assign or sub-lease A. If orig. lease silent, then T1 can assign or sublease w/o LL’s consent B. If orig. lease expressly forbids T1 to transfer, then it’s enforceable against T. C. Can LL arbitrary refuse to consent to T1’s proposed assignment or sublease? I. Maj: YES. II. Minority: LL can refuse, but ONLY IF it’s based on objectively “commercially reasonable” factors; “* *Ex. if proposed assignee/sublessee insolvent/has bad credit; compatibility of proposed subtenant’s use w/ that of other tenants,needs to alter property to accommodate proposed sub-tenant’s use) *invalid reasons: refusing consent to extract higher rent; racial prejudice 2. Sub-Leases vs. Assignments A. Assignment: Tenant transfers entire remaining interest in lease to a 3d party New tenant/Assignee “steps into the shoes” of T1/the assigner New tenant/Assignee directly liable to orig. LL must perform all obligations of orig. lease that “touch and concern the land” (ex. pay rent) B. Sub-Lease creates new tenancy between sublessor (T1) and sublessee; Sub-lessor = both T1 to main LL and a LL to sub-lessee C. How to know if parties created assignment or sub-lease? I. Maj/C.L.: (Bright-line) Does prime tenant retain a reversion (even if only of one day at the end of the prime lease) in the lease? If yes sub-lease Does instrument purports to transfer T’s estate for the entire remainder of the term? If yes assignment II. Min/modern: (Fuzzy/Subj.) The intention of the parties governs whether instrument = assignment or sub-lease D. LL’s claims against Sublessee for Delinquent Rent I. Default: Eviction II. Alt: If sublessee agreed to assume terms of orig. lease, then LL may be able to bring suit for damages for sublessee’s breach of orig. lease terms. E. LL’s claims against Assignee for Delinquent Rent I. Evict; OR II. Damages claim for breach of orig. lease Cooperatives and Condos 1. Coop v. Condo A. Coop: corporation; shares distributed to members; then corp. rents units to members , who are considered tenants LL/T statutes still apply No single co-op owner internalizes costs of eviction; it’s absorbed by coop corp. / distributed evenly (in contrast w/ LL) B. Condo: each unit owned by individual owners. 2. Benefits of community living entities –Address collective action problems Board regulates who your neighbors are Board regulates private community rules – Deed , charter, or other legal docs govern community Costs of collective activities (ex. renovation to enhance value of the property) absorbed collectively, so burden doesn’t fall on 1 owner Ex 1 Condos. Nahrstedt – Condo. rules banning pets upheld as providing reasonable sorting functions- prospective condo. owners who don’t like given condo’s rules can find another condo that suits their needs. Ex. 2 Coops , 40 West 67th Street– By what standard should cts. review coop’s decision to evict disruptive member? Objective test- has coop acted w/ business reasonableness? (Held: Yes, given egregiousness of member’s disruption) 3. Contrasts between renter & condo owner A. Renter: Econ. stakes are lower b/c rental = short-term commitment; thus, ct. less likely to allocate to him risks of not paying for inspection of premises, or for legal review of K ; (no incentive to make such long-term investments; matter how bad it is, it’s a short-term arrangement) B. Condo Owner: , econ stakes higher; thus, ct. more inclined to allocate risk to him of getting unit inspected, having K inspected Trusts 1. How Trusts Work: I. Splits fee simple between trustee (who has legal title MANAGES resource) and beneficiary (who owns equitable title long-run USE/ ENJOYMENT/CONSUMPTION of the trust) A. Settlor (usually parent ) puts person in charge of managing large amt. of assets ( trustee) to regulate someone else’s (usually kid’s – beneficiary’s) responsible use of asset B. Trustee Person w/ powers of asset management & control Has legal title “gatekeeper” of asset / regulates beneficiary’s use C. Beneficiary Person who benefits from asset D. Trust = $; Corpus aka res = principal II. When are trusts useful? transmitting wealth within families; managing charitable foundations/nonprofits; organizing pension funds III. Creditors’ access They can only reach beneficiary’s assets when he receives cash, but not before that point (Broadway Nat’l Bank) IV. Fidicuary duty Trustee Owes Beneficiaries If trustees have interest in transaction with the estate in their other capacity as individuals, they must not engage in the transaction unless they can prove they don’t have conflict of interest. Ex. Rothko Trustees sell Rothko’s valuable paintings to gallery 1 Trustee board of the gallery – conflict of interests b/c while he’s trustee, he’s also getting fees from gallery Another trustee also had conflict b/c he was also artist under K w/ the gallery that was conducting business with the estate. Held: All 3 trustees liable to trust for damages V. Cy Pres Doctrine- What happens to trust admin. upon changed circumsts. not anticipated by settlor? Permits cts. to revise trusts in light of changed circumsts. long after settlor dies, to put $ to better use Paradigm - Charitable trusts lasts long time. Settlor leaves $ in trust to create foundation to support polio victims Settlor dies. Many yrs. later, researchers develop polio vaccine, meaning there are much fewer polio victims than when settlor created trust. Issue: Can trustee get cts. to modify trusts to devote funds to some other purpose? **Trad. Am. rule: A. Specific charitable purpose must be impossible or illegal; AND B. Instrument of trust must reflect a “general charitable intent” in addition to the spec. purpose **Mod. American rule: RST of Law 3d, Trusts- Should be available when carrying out the original trust would be “wasteful” Title Records and Transfer Nemo dat “no one can give that which he does not have.” Person receiving property only receives what previous ownr had and nothing more. Ex. If A transfers x property to B, and then later to C… B has the property right. C has nothing b/c A had nothing to transfer to C after A’s transfer to B. Kunstsammlungen zu Weimar – nemo dat applied to good-faith purchasers of stolen goods. Facts: Grand Duke transferred paintings Thuringia (state in Weimar Rep.) Grand Duke hides paintings in their castle during WWII Post-WWII, USSR take over E. Germany – Thuringia becomes part of Soviet E. E. Germans est. museum & lay claim to the paintings American serviceman in E. Germany steals aintings, then sells them to D in Brooklyn Held: Even though D/American buyer purchased paintings in good faith, doesn’t matter b/c American soldier stole the paintings; he never had title to them anyway, thus he had no property right to transfer to the buyer. PRINCIPLE* thief (who has void title) can’t transfer good title to even a bona fide purchaser for value (aka, good faith purchaser) Public policy: deters stealing Good faith Purchaser statutes (UCC)- EXCEPTION to nemo dat doctrine. RARE circumsts. when good faith purchaser for value can acquire title, even though transferor/seller has “voidable title” (UCC) Paradigm- A sells to B, but transaction is flawed (Ex. B’s check bounces, or A defrauds B) B, whose title is voidable (questionable) sells good to C, a good faith purchaser for value. C will get title even though transaction between A and B flawed. Kotis: GFPVs of personal property Issue: Who has better title: orig. seller of good to buyer w/ voidable title (whose check bounced), or good-faith-purchaser-for-value who later bought watch from 1st buyer w/ voidable title? Concl: Good faith purchaser for value has better title. Facts Nolin Jewelry sells Rolex to Sitton (costs $10K) Sitton then sells Rolex to Kotis for $3-4K . Sitton’s (forged) check bounces. Principles: A purchaser, even a “ne’er do well” purchaser, who has voidable title, may transfer more than he has [valid title to the watch] to a good faith purchaser for value. exception to nemo dat. Policy: bright-line, all-or-nothing rule; fosters clarity & predictability encourages merchants, sophisticated business people, to be careful before they sell to someone with questionable finances good faith purchaser for value (GFPV): “good faith:” honesty in the conduct or transaction concerned Ex. if price “too good to be true”--> constructive notice to buyer it’s stolen “for value” – purchaser must buy good from person w/ voidable title for value (for consideration); transfer couldn’t have been gratuitous (as a gift) GFPVs of land Approach A - Hauck Original owner is responsible for his own negligence in succumbing to fraud (here, where a fraudster tricked orig. owner into signing docs. that turn out to be a deed). Thus GFPV’s title trumps original owner’s Approach B- equitable estoppel Allow subsequent GFPV to prove that orig. owner was negligent, which estops owner from denying GFPV’s title. If owner’s negl. led to justified reliance by GFPV, then GFPV prevails. Allows GFPV to win, even though deed was void. Directory: outlines -> Property outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Property -> Property Outline – Professor Kieff Property Law Theory Download 0.52 Mb. Share with your friends:
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