PROPERTY

PROF. SIRICO – FIRST SEMESTER 1998

FREEHOLD ESTATES

Present Interest Future Interest

Freehold Examples In grantor In third person
Interests
Fee Simple Absolute 1)O to A None None
O →A 2)O to A and his heirs
Fee Tail 1)O to A and his bodily Possibility of Vested Remainder
heirs reverter Contingent Remainder
O → A→ A1 → A2 → O 2) O to A and the heirs (Reversion is a fee Executory Interest
of his body simple absolute)

Defeasible Estates *
Fee Simple O to A (and his heirs) so long Possibility of Executory Interest
Determinable as liquor is not sold on reverter – as soon as
property then to O and his condition is broke,
(time words) heirs the property returns
O → A as long as . . .then → to grantor in fee
O and his heirs Magic Words: so long as, simple absolute
during, while
Fee Simple Subject to O to A (and his heirs) on Power of Executory Interest
a Condition condition that liquor is not termination (right of
sold on the property then to O entry, right of
Subsequent and his heirs reacquisition). When
(condition words)
grantor exercises
O → A provided that . . . then Magic Words: on condition right of termination
→ O and his heirs that, provided that he gets land in fee
simple absolute.
Life Estates O to A for life Reversion – at end Vested Remainder
of A’s life, goes back O → A for life → B
O → A for life to O Contingent Remainder
O → A for life → B if B
survives A
Executory Interest
O → A for life → then in
10 years to B

* The difference between Fee Simple Determinable and Fee Simple Subject to Condition
Subsequent is the magic words, however, courts favor non-forfeiture and are likely to
favor Fee Simple Subject to a Condition Subsequent in cases of ambiguity.

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I) NON – DEFEASIBLE ESTATES

A. Fee Simple Absolute

1) Definition - The greatest degree of ownership available on an estate; have all
interest in the property – present and future.

2) Example – O to A; O to A and his heirs

B. Fee Tail
1) Definition – Designed to keep property in family indefinitely, not able to be
sold.

2) Example – O to A and the heirs of his body: O to A and his bodily heirs
*these are magic words necessary to create a fee tail
3) History – Statute de Donis. Recognized the fee tail, in 1285. Successive life
estates continued indefinitely until the line of decent died out. The king disliked this
statute because it prevented him from taxing land upon transfers. Also, any grantee in
present possession of a life estate could not grant or lose (to king or creditor) any more
than his life estate.
1472 King destroyed the fee tail through common recovery which was a
fictitious law suit allowing the current owner to sell the property.

II) DEFEASIBLE ESTATES

A. Fee Simple Determinable

1) Definition - an estate that comes from a grantor who retains a possibility of

reverter; when the condition is broken there is an automatic reversion to the grantor.

2) Example – O to A and his heirs so long as no liquor is consumed on the

premises.

3) Magic Words - “so long as”, “during”, “while”

B. Fee Simple Subject to a Condition Subsequent

1) Definition – a type of defeasible estate that when a condition is broken, the

grantor has a power of termination and can reenter the property by notifying the grantee
in writing announcing his intention to exercise his right. Only after notification, the
grantee has to relinquish the property to the grantor.

2) Example - O to A and his heirs on condition that no liquor is consumed on the

premises.

3) Magic Words – “on condition that”, “provided that”

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C. Fee Simple Determinable v. Condition Subsequent

1) Courts tend to favor the fee simple subject to a condition subsequent because
they tend to rule in favor of non-forfeiture, inherent in the power of termination. (Only in
situation where it makes a difference – cases of ambiguity where it effects the rights of
the parties.)

2) Grantee is better off with a fee simple subject to a condition subsequent

because the grantor has to request the property. The grantor is not obligated to notify
grantor that condition was broken.

3) Economic Considerations – Who gets money that is generated from land when
condition is broken?
a) Fee simple determinable – proceeds go automatically to the grantor
b) Fee simple subject to a condition subsequent – proceeds go to grantor
ONLY after exercising the power of termination.

4) Hagaman v. Board of Education – example of court application

Court ruled that it was a covenant and the Board of Education retained the
property. The Court will strictly interpret the words used in deeds. When a conveyance
contains only a clause of condition or of covenant, such clause does not usually indicate
intent to create a fee simple determinable (Restatement of Property). The Hagamans did
not use the proper magic words and did not create a fee simple subject to a condition
subsequent. If the magic words are not included the courts tend to construe a covenant or
a trust. Reaffirms the court’s tendency to eliminate the “dead hand of the past” and will
rule in order to prevent forfeiture.

D. Drafting a good Defeasible

1) Make sure the intent is clear, spell out intent by using specific phrases such as
“defensible estate” “fee simple subject to a condition subsequent” and “fee simple
determinable”.

2) Use the words “revert to grantor” and “magic words” (see A(3) and B(3)

3) Look for cases in jurisdiction where the court ruled that a fee simple
determinable was created and copy the language.

4) Make conditions reasonable in terms of time and limitation (example: If

Hagaman had said “to use as school for 20 years” )

5) EXCEPTION: If history points that a defeasible estate was intended without

the magic words, the court will find that a defeasible estate existed (Mississippi Case).

E. Restraints on Alienation

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 1) Definitions

a) Alienation – transferability of property while the grantor is alive;

grantor may sell property or give it to another.

b) Conveyance – transfer of interest in real property from one person to

another by means of an instrument such as a deed.

c) Restraint – any attached conditions making it hard for the grantee to

alienate.

2) Restraint in general

a) It is ok to restrain the use but not the user (example: Mountain Brow
Lodge No. 82 v. Toscano – land must be used for lodge purposes—in effect restraining
the free alienability of land. The court ruled in favor of lodge bc they can sell the
property for a charitable cause, thus using it for lodge purposes.)

b) All restraints on fee simples are void.

c) Examples:

i) O → A so long as A owns an operates the property – invalid b/c

it is a restraint on the user

ii) O → A so long as A uses the property for a church – invalid b/c

it restrains A’s option to sell

iii) O → A so long as property is used as a church – valid b/c it

only restrains the use of the property.

III) LIFE ESTATES

A) Definition – A estate when the present possessor of the estate dies.

B) Problems and privileges with Life Estates

1) Orphan Problem – can the present possessor be compensated for addition to

life estate? No, the remainderman is not responsible for costs of additions made by life
tenant. In cases where gov’t takes the property (when life tenant makes improvements)
compensation is divided where life tenant receives the income and the remainderman
receive the principal.

2) Maintenance and Repair

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 a) life tenant is responsible for necessary repairs and normal maintenance
during the life estate

b) Improvements that are necessary to preserve and protect the estate, the
life tenant can make the remainderman pay the difference (undetermined).

3) Waste

a) Definition – Can’t decrease the value of property – Doctrine of Waste

b) If life tenant creates waste they must either 1) pay damages or 2) forfeit
property

c) Life tenant responsible for normal wear and tear

d) the Life tenant only gets paid by remainderman only gets paid by
remainderman it repairs are necessary and expensive.

e) Traditional view – every change to property outside of specifications of

deed is waste. Modern view – only economic detriment is considered waste. (Doctrine
of Equitable Waste)

g) “without impeachment for waste” – if included in deed, the

remainderman cannot sue for waste.

4) Measuring Life

A → B for life B is the measuring life

A → B for life of X X is the measuring life (per autre vie)
A → B for life ---B → C B sells life estate to C and C has life
Estate with B as measuring life

A → B for life → C B sells life estate to D and C sells

↓D ↓D future interest to D, then D has a
fee simple at the time of transfer

a) Examples:

i) “to my son and daughter for life” 1) until the last person dies;
2) as long as they are both alive; 3) separate the shares – each keeps share of property for
life.

ii) Testator “for life to my son and daughter and to the survivor
of them.” Joint life estate as long as they are both alive and when one dies, the life estate
ends and the survivor has a fee simple absolute.

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 iii) Testator “to my wife for life, but if she (bitch) should
remarry, then to my son” 1) if she remarries, wife is measuring life for son’s life estate
or 2) wife has life estate and son gets fee simple if she remarries (most used by courts).

5) Power of Appointment - allows life estate to be sold or used under guidance of

the person who holds the life estate. This is only allowed when stipulated in the life
estate.

6) Four Corners Rule - have to stay within the four corners of the will, you can’t
look for outside guidance to find out intentions of testator.

Rules of Construction for 4 Corners rule

a) Assumption to keep property in blood line

b) Promote alienability

c) Avoid Intestacy

d) Avoid interpreting the will so that it is invalid under the

common law rules. (rule of alienability, rule of perpetuities)

IV) REMAINDERS AND EXECUTORY INTERESTS

A) Definitions

1) Reversion – interest that the grantor keeps

2) Remainder – a future interest created in a third party capable of becoming a

present possessory interest on normal expiration of prior possessory interest.

3) Vested Remainder – Remainder to a born and ascertained person when prior

estate naturally terminates

4) Contingent Remainder – remainders created for unascertained people or subject

to a condition precedent, and must vest at the natural termination of the prior estate.

5) Executory Interest – the interest other than a remainder (follow defeasible

estates)

6) Shifting Executory Interest – immediately follows a fee simple defeasible

7) Spinging Executory Interest – an interest that follows a gap in possession or

divest the estate of the transferor. During the gap, property reverts back to the grantor.

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B) Remainder

1) If grantor would normally have an reverter but creates an interest in a third

party, it is a remainder.

2) Two rules of remainders

a) Nor permitted to take effect until the expiration of preceding estate.

b) It is not permitted to take effect at a time subsequent to the expiration of

the preceding estate.

3) A remainder cannot follow a fee simple defeasible because it does not come to
a natural end.

C) Vested Remainder – A → B for life → C C has a vested remainder immediately at the

death of B

D) Contingent Remainder

1) Who/ If Contingency

a) Who contingency – C is unborn or unascertained

A → B for life then to his heirs; B’s heirs are unascertained until B’s death.

b) If contingency – condition exists that must be satisfied before C can

come into possession.
A → B for life → C if C is married -- C only has a remainder contingent upon
being married, if C is not married at B’s death, the property reverts to A.

E) Shifting Executory Interest – comes immediately after a defeasible estate

Example: A → B as long as property is used as a farm, then to C.

C has a shifting executory interest, if property is not used as a farm, it
immediately goes to C.

F) Springing Executory Interest – Time gap is necessary.

Example: A → B for life, after 10 years to C

During time gap, A has a fee simple subject to an executory interest.

G) Reversion – interest kept by the grantor

Example: A → B for life. When B dies the property immediately reverts back to A.

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V) RULE AGAINST PERPETUITIES

A) Definition: For a contingent future interest1 to be valid, the interest must vest2 , if it
vests at all3 within 21 years after some life in being when the interest is created4.

(Rephrased def: for a contingent interest to be valid, we must be able to determine with
complete certainty that the interest will not become a vested remainder or present
possessory interest after the Rule’s deadline (life in being plus 21 years).

B)Definition Breakdown:

1) Contingent future interest: contingent remainder or executory interest.

The rule CANNOT invalidate vested remainders or any reversionary interest held
by a grantor.

2) Vest: become a vested remainder or the holder must gain the property as a
present interest. Example: fee simple.

3) if it vests at all: The rule does not require an interest to vest before the deadline
passes, the deadline is a life in being plus 21 years, it requires us to predict with certainty
that if an interest is ever going to vest it will vest before the deadline passes.

4) after some life in being when the interest is created: in the case of an inter
vivos grant, pick the life of a person alive when the grant was made. In the case of a will,
pick the life of a person alive when the testator died. (life in being)

C) Purpose: to destroy remote future interests. Consistent with the court showing
hostility towards remote interests in the past.

D) History

1) 1536 – Statute of Uses – creation of executory interests

2) 1631 – First case with Rule against Perpetuities destroyed executory interest
and some contingent remainders.

E) Mechanics

1) Rule effects two kinds of interests (any interest the grantor holds is valid)

a) contingent remainders

b) executory interests

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 2) Determinable Date – 21 plus “life in being”

3) Life in Being – anyone mentioned in the grant, explicitly or implicitly – use

many ONE life that will validate the interest (if more than one applies).

F) Examples:

1) O → A for life and then to the first child who graduates from VLS. Assume
that A has children and none has graduated from VLS.

Grant is invalid because it cannot be determined with CERTAINTY that an

interest will vest before the deadline or that it will never vest.

A’s children have contingent remainders.

With A as the measuring life – The first child to graduate may be a child who is
born after O makes the grant. The child might graduate more than 21 years after A dies.
Thus, it cannot be determined with certainty that the interest will vest before the deadline
or will never vest.

With one of A’s children alive as the measuring life – it is possible that the first
child to graduate will be a child born after O makes the grant. It is possible that a child
will graduate more than 21 years after the life in being. Therefore, it cannot be
determined that the interest will vest with certainty.

2) By will, T devises property “to A for life, remainder to those children of A who
attain 21.” At the time of T’s death, A has no children.

Grant is valid, because it can be determined with certainty if the property will vest
or not vest within the deadline.

The remainder is a contingent remainder and must satisfy the rule to be valid.
A is the only possible measuring life within the facts (no children are born). All of A’s
children will be born before A dies. Also, all of A’s children will turn 21 within the
deadline (A’s life plus 21 years). It is a possibility that A may have no children or that
they may die before reaching 21. However, we will know that if the contingent
remainder is going to vest, it has to vest before the deadline. It will not vest only after
the deadline.

3) A → B for life, remainder to C and his heirs – VALID

4) O → B for life, remainder to the heirs of C (a living person) – VALID

5) O → B for life, remainder to C and his heirs if C survives B, otherwise to D

and her heirs (C and D are living persons) – VALID (alternate contingent remainders)

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 6) A leaves everything by will to “my first grandchild to attain the age of 21 years
(At A’s death, A has one daughter, D, who is childless) – VALID

7) O makes an inter vivos gift to “the first child of B to attain the age of 25 years.”
(B is alive and has one child, C, who is 24 years old.) – INVALID

G. Strategy for Rule against Perpetuities:

1) Make sure the interest is a contingent remainder or an executory interest and

therefore, that the rule applies

2) Identify the deadline: life in being plus 21

3) Try to identify any (only has to be possible) under which the interest in
question might vest after the deadline.

4) If no such series of events exist, the interest is valid

5) If a series of events does exist, pick another life in being and start over

6) If no series is found, the interest is valid. Try another measuring life. If there
are no more measuring lives left that gives the proper deadline, the interest is valid

7) Once a measuring life gives a deadline for which the interest is valid, stop. The
interest is valid under the Rule.

H. Problem with Rule Against Perpetuities.

1) It’s too complicated.

2) There is no functional logic – hit or miss

3) Rule is arbitrary

4) Ties up property if the “wait and see” rule applies – wait until the deadline
passes to see if the interest will vest rather than saying the grant is invalid because of a
possibility that the property will not vest.

I) Drafting a clause to combat the rule against perpetuities.

1) Use a measuring life that will last a long time i.e. last survivor or all lineal
descendants; last grandchild of the grantor, etc.

2) make sure that the measuring life used is not unmanageable

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VI) WILL DRAFTING

A) Wills are governed by Statute – no wills accepted until 1540, statute of wills – allows
people to choose to pass property by devisees.

B) Wills are changeable – add a codicil to amend will.

C) Signing will – Wills require 2 or 3 witnesses; also have client sign all pages in margin
to show nothing was added.

D) Attesting Page – all formalities of will were complied with.

E) Self-Proving Clause/Affidavit.

F) Wills require an executor and back-up executor

G) When devisees are minors – it is required that a guardian and a trustee are named –
parents choose age of guardianship and trustee.

H) There are no future interests

I) “per stirpes” v. “per capita”:

per stirpes: divided equally between children, grandchildren share the child’s
interest

per capita: equally divided among all survivors (children and grandchildren alike).

LANDLORD AND TENANT RELATIONSHIPS

I) INTRODUCTION/TYPES OF NON FREEHOLD ESTATES

A) The landlord has a freehold interest subject to a tenancy.

B) 4 types of L/T estates – it must fit in one of these “pigeon holes” – no Hybrids!

1) Estate for years

a) tenancy is set for fixed period of time

b) no notice is required, it expires at end of period of time

2) Periodic Tenancy

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 a) tenancy last over continuous periods, succeeding periods of time, it
could potentially last forever, goes on infinitely.

b) Notice is required

i) year or longer – notice period is 6 months

ii) less than one year – equal to length of tenancy

iii) has to coincide with period – cannot terminate in middle of

period.

3) Tenancy at Will

a) lasts as long as T AND L desire

b)can be terminated at any time with no notice

4) Occupancy at Sufferance

a) T occupies the space illegally

b) doesn’t pay rent – if rent is paid, they are considered a T and there is no
set time limitations.

c) called a Holdover T, because they are living there illegally

d) Ultimately, the holdover T is i) evicted or ii) negotiate a new lease

(become a tenancy at will).

e) A L can i) treat the tenant as a trespasser or ii) treat the tenant as a

periodic tenant.

f) If L accepts checks, the occupant is a T and the old lease is renewed.

5) General Issues

a) Rent is paid for all but Occupancy at Sufferance.

b) Notice is ONLY required for periodic tenancy

c) Trend of law is to require both rent and notice.

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C) Type of Legal Agreement – Contract v. Property

This is a special kind of contract law that developed over time – the lease, an
agreement with obligations on both sides, creates an interest in land.

D) Independent v. Dependent covenants (University Club v. Deakin)

a) Independent covenant – not vital to the lease, if broken, the lease continues and
damages can be awarded.

b) Dependent covenant – vital to the lease, if violated, lease is terminated.

c) Trend is to find all covenants in a lease as vital.

E) Delivery of Possession

a) occurs when someone is supposed to move in and an old tenant is still there.

b) English Rule (Majority Rule) – L has to deliver; L has right to issue summary
process because L is in position to take preventative measures

c) American Rule (Minority Rule) – L says that possession was already delivered
and new tenant has legal possession once the lease is signed. Once legal possession is
given to the T, he has legal rights and L has no legal possession over the property. If T
had wanted actual possession, it should have been stipulated in the lease.

d) Policy Analysis – there are two innocent parties in the lease the landlord and
the new tenant. It is a question on who is going to be left with the problem. There is a
good argument to allocate risk to L when 2 innocent parties are involved because L is in a
better position to alleviate risk.

e) New T has possession on first day and must take care of any trespass after legal
possession occurs.

f) To solve problems of this kind, stipulate remedies in lease.

F) Landlord’s Motives in Selecting and Removing Tenants

1) Effects Test – look at effect of L’s policy, Does it have discriminatory effect?

a) Tenant can argue that the L’s rule disproportionately effects a certain
minority group, according to statute.

b) Once plaintiff can prove disproportionate effects, the burden shifts to L

who has to prove business judgment – financial stability and no alternative
course of action.

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 c) Courts tend to give L’s the benefit of determining their own business
decisions.

G) Landlords Remedies (If T breaches the lease)

1) Self-help

a) Forcible entry and detainer

i) Definition – self help to dispossess the T of property until rent is

paid.

ii) Started as criminal prohibition and then developed into a tort

remedy; helpful to T because it is a private remedy – makes things
manageable by law allow private enforcement practices.

b) statutory lien

i) Definition - statute authorizing or allowing L to claim property

interest in T’s property until rent is paid from time of execution of
lease and bringing chattel on to premises.

ii) Under the lien, L has interest in T’s property from beginning of
lease

iii) L’s prefer liens because T knows about lien from beginning of
lease and cannot contest it.

c) distraint

i) Definition – right of L to seize personal property and hold it until

T pays rent.

ii) L cannot take necessities

iii) L has an interest only when T defaults; NOT at beginning of

lease.

iv) This remedy has never been popular in this country. Some
states have modified it and now requires a sheriff; many states
have replaced it with statutory liens.

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 2) State Action – In order to exercise distraint, it must be authorized by a statute,
but the statute is not enough to constitute state action. The action must be done by agent
of the state.

3) Summary Process – Speedy process to determine if landlord can evict tenant.

Provides shorter method of deciding cases in L/T law. These are statutory creations
designed to get T quickly off the property, and must consult statute to see when you can
use summary process.
a.) L can assert summary process after L has evicted T and T has refused
to leave.
b.) L must demand the rent before commencing summary proceedings.
c.) Courts adopt summary proceedings to help the L to quickly get rid of a
T and deter the use of self help.
d.)Process of ejectment- Takes longer

4) Acceleration Clause- L can ask for the balance of the term of the lease
immediately after T has failed to pay. If L forces T to pay the entire lease then the T can
not be evicted

5) Withhold Security Deposit- If T fails to pay rent then L can withhold security
deposit to cover the cost of the rent.

6) Sue for entire damages (accepting or rejecting surrender) If T fails to pay rent
or abandons property.

a.) Tenant offering Surrender:

i) Offering Surrender – T offers opportunity to L to terminate the

lease; if T stops paying rent, it is an offer of surrender; conduct can
be a surrender

ii) Accept Surrender – Acceptance has to be in writing; L agrees it

is necessary to terminate. If surrender is accepted, he is only
entitled to back rent.

iii) Reserved Rental – Future rental that has not yet been paid.

iv) Back Rental – Prior rent that has not be paid

b) If L refuses T’s surrender, the lease remains in force and T has to paid
back rent as well as prior rent not paid.

i) Traditional Common Law – L can do nothing and demand rent,

there is no duty to mitigate.

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 ii) There is a trend in the law where the landlord is a duty to
mitigate. L must try to find a new tenant. If successful, the landlord must subtract the
new tenant’s rent from the reserved rental that the defaulting tenant owes.

c) L renting on T’s account - when it is unclear if L accepts termination or

denies termination and L puts in a T who is paying a lessor rent, is T responsible for the
difference in rent? Yes, T is responsible for the difference in rent.

d) If L accepts surrender, under contract remedy L receives reserve rental

value minus reasonable rental value (Saggamore v. Willcutt). Only a good remedy if the
market value has dropped. Example: If T is in a 5 year lease, L accepts surrender after 2nd
year. If the reasonable rental value has dropped, the L will collect the difference for all 3
years.

7) L’s right in government housing – Property Interest in Tenant

a) Has to be government subsidized housing

b) T’s lawyer has to prove that T has a property interest – there is an

interest to have a home free from arbitrary eviction.

c) If T has property interest, she entitled to procedural due process because

an agent of the state (L in gov’t housing) is exercising distraint. Procedural Due Process
provides (roughly – may vary from state to state.)

i) Notice
ii) confrontation of witnesses
iii) counsel
iv) decision maker based on evidence of hearing.

d) Entitlement – If a T has an expectation that the gov’t will protect

(property interest) and without cause, L cannot evict T, T has entitlement (Example: Joy
v. Daniels – Joy has interest in property.)

H) Landlord Duty

1) Doctrine of Unconscionability – a provision in a contract so grossly unfair

that it is unconscionable. T waives right to sue L for damages – exculpatory clause –
exculps L from liability. Laid out in the UCC, but not always applied to L/T law. This is
not the first line of defense for a T – the courts prefer a more conservative approach.

a) re-interpret the clause

b) re-form the clause
c) Unconscionable

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 2) Covenant of quiet enjoyment (an essential covenant that goes to heart of
lease)

a) expressed or implied in every lease – except in New Jersey

b) If L breaches, T has a choice
i) terminate lease
ii) stop payment of lease
c) Definitions

i) Actual Eviction – When L or someone with Paramount Title

excludes T from premises. Example: Locked out of apartment.

ii) Partial Eviction – Occurs when T is physically excluded from

part of the premises. Example: Lose part of property because L
gave driver.

iii) Constructive Eviction – If L acts or fails to provide service he

legally has to provide making the premises uninhabitable, the T
may terminate the lease. Example: No heat in apartment

iv) Partial Constructive Eviction – When L effectively deprives

tenant of use of part of premises and T must abandon that part of
the premises. Example: Leaky AC on the balcony. Cannot stay
free indefinitely.

3) Implied warranty of habitability

a) Traditional Ruling – warranty of habitability had to be an express

warranty. (PROPERTY ruling)
i) Exception – short-term housing Ingalls v Hobbs – summer
house has an implied warranty because it is rented without first being seen and for a
definite period of time.
b) Modern Trend – Javins v. First National Realty Corp. (Contract ruling)
Warranty of habitability is implied in every residential lease (as stipulated in the Housing
Code) and some commercial leases – depending on power relationship between landlord
and tenant.
i) Facts: T was residential tenants, whom L was seeking to
dispossess on the grounds that they had defaulted in their rent. The Ts conceded the lack
of payment, but asserted that the building contained hundreds of violations of the District
of Columbia Housing Regulations
ii) Reasons for Javins
1) law has to keep up with the times, T is no longer leasing
the land, he is leasing a PACKAGE of GOODS and SERVICES.
2) protect the consumer (Contract law)
3) Housing shortage (unequal bargaining power between T
and L)

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 4) Enforce the Housing Code

iii) Damages
1) Partial Breach – T pays partial rent calculated by
reasonable market value with Housing Code violation – difficult to calculate. (Not real
contract remedy because contract doesn’t allow partial recovery)
2) Full Breach – T pays no rent while the breach continues
3) No Breach (de minimus) – change in possession; L wins

4) Repair and Offset – Landlord’s Tort Liability

a) Marini v. Ireland – T’s toilet broken and leaking and the L did not
repair after being notified many times. T hired plumber to fix toilet and offset cost by
deducting bill from rent. L moved to dispossess T.
1) Lower Court said that L did not have a duty to repair.
2) Issues:
i) No covenant of quiet enjoyment in New Jersey so the
court finds an express covenant through the language of the lease.
ii) T did not use traditional remedies: terminating lease OR
stopping payment of rent and created new remedy.
3) Remedy of Self Help – can use self help to repair essential
facilities of the apartment if the L fails to do so after being put on notices of the condition
or after the T has made a reasonable effort to contact the L. Can then deduct the amount
paid from the rent.
4) Limitations of Self Help
i) Only applies to Vital facilities
ii) Limit on what T can spend on self help depending on
jurisdiction (Ex: California – one month’s rent; PA – reserved rental)
iii) T must try to give timely and adequate notice
iv) L has to fail for an adequate period of time to make
repair.

b) Two ways to change the law:

1) find exception to law and expand it until it becomes the law
Example: Marini expands the property law to find a remedy for the T.
2) Find a new area of law when law doesn’t address the problem
Example: Javins uses Contract law to find a remedy for the T.
c) Self Help does NOT apply to commercial settings when parties have
equal bargaining power. (Gap v. King of Prussia)

**Tenant’s best weapon is to withhold rent. However, you run a risk of being evicted.**

d) Right to Housing Code Protection: Brown v. Southall Realty, If T

enters into a lease that has housing code violations, T is not liable for rent because lease
is void (Contract Theory). Brown was an illegal contract whereas in Javins the lease
was valid, but there was a breach of that lease (contract).

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 e) Right to Safe Premises – Common Areas – L’s Tort Liability –
Common Law Rule; Cannot hold someone liable for the criminal acts of a 3rd party.
Exceptions to Common Law: inn-keepers; common-carries, business open to public
Modern Law trend – L is responsible for foreseeable criminal activity – criminal conduct
is foreseeable because L has failed to provide safeguards.

Tort Theory Implied Warranty Theory/Breach of Contract

L negligent – did not protect T
Difficult to prove negligence of L
More money
Shorter Statute of Limitations
Statute of Limitations starts at time of injury
L breached duty in lease
Can find standard for L should have done
Less Money – No possibility of punitive damages
Longer Statute of Limitations
Statute of Limitations is at time of breach

CONCURRENT INTERESTS AND MARITAL PROPERTY

I) Definitions
A) Tenancy in Common –
1) undivided ownership;
2) both have equal right to all parts of land.
3) Does not have to be in equal portions.
4) Can be owned by several people – 2 or more.
5) Not severalty – 2 separate, divided properties
6) There is no right of survivorship. Each interest can be sold, passed by
intestacy or by will.

B) Joint Tenancy –
1) Joint Tenants have a right of survivorship – whoever lives longest gets
the property in fee simple.
2) undivided ownership
3) Destroyed by:
a) equal agreement
b) unilateral action – if one party losses (by creditor) or sells share,
creditor/buyer becomes a tenant in common.
4) Must have 4 Unities
a) time – title must vest at the same time
b) title – all tenants must acquire title by same document
c) Possession – undivided interest in the whole
d) Interest
i) interest must be the same size ( ½, ½, etc)
ii) both parties have same common law estate (both fee
simples, life estates, etc.)
5) In cases of ambiguity, the court will favor a tenancy in common
because it is more stable and both parties retain future interest in property.

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 6) Example: A, B, & C have a joint tenancy. A conveys interest to D. D
has a tenancy in common with B & C, who are joint tenants with right of survivorship
with respect to each other.

TENANCY IN COMMON
Joint Tenancy
1/3 D 2/3 B &C

C) Ambiguity Example: Gagnon v. Pronovost – Deed to bother (Jules) and sister

(Georgiana). Jules died first. Georgiana’s successors claim there was a joint tenancy and
they would get all the property. Jules successors claim there was a tenancy in common
and they get half – technical problem with language of the deed creates ambiguity.
Statute construes the deed to find a tenancy in common when ambiguity exists. Only find
joint tenancy when it is very clear a joint tenancy was intended. “To the Survivors of
them” s is what creates the ambiguity.
The Holding was to treat it as a tenancy in common.

D) Hass v Hass – deals with common law problem – cannot be both grantor and
grantee of a joint tenancy because 2 of the 4 unities will not be satisfied (time and title).
1) Remedy for problem – use a strawman – a person (i.e. paralegal,
secretary, real estate agent etc.) who gets transferred the property and at the same time the
strawman transfers the property to the two other people in a joint tenancy.

B → X → H & B in joint tenancy

2) Holding – Court got creative and created a tenancy in common with a

right of survivorship. B → H & B for their joint lives → remainder to survivor. This
decision results in uncertainty and is not usually followed because the law prefers
predictability.

II) Tenancy by the Entirety

A) Definition – tenancy between Husband and Wife

1) Destroyed by:
a) mutual action
b) divorce
2) Need 4 Unities + Marriage (in PA don’t need 4 Unities)
3) Can sell interest as a life estate, but not right of survivorship
4) 2 Components
a) joint interest while both are alive
b) right of survivorship (cannot be sold)

B) Difference between survivorship interest in joint tenancy

1) joint tenancy – does not vest until the other party dies
2) Tenancy by entirety – survivorship interest is present at all times –
reason for no unilateral destruction.

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 C) In most states in a tenancy by the entirety, you cannot collect on one party’s
debt. To take action on the tenancy by the entirety there has to be a joint debt. [except in
NJ]
D) Example: King v. Green – Marie had property and court has Marie’s property
converted to tenancy by the entirety. Marie owed money to Phillip and he forces a sale of
Tenancy by the entirety. Marie’s interest was sold to Crowell. The Tenancy by the
entirety remains and Phillip and Crowell sell interest to Smook and Green buys the
property with mortgage and tenants. In New Jersey, the right of survivorship can be sold.
Could not happen in other states because original sale could never take place – not a joint
debt. Normally, only way to end tenancy by entirety is by mutual assent or divorce.
Dissent – court will discourage a reading like this because the holding encourages
a gambling event because if you buy a life interest component, you would have to hope
that the other spouse died first. Tempts creditors to speculate. People who do not know
each other are joined as co-owners of property.

E) Doctrine of Reception – all laws of England prior to Revolution is good unless

it is repugnant to US laws

F) Married Woman’s Act – Married woman has same rights as a single woman in
terms of property.
After Act:
1) Neither can alienate share of tenancy by entirety; or
2) both can alienate share of tenancy by entirety (Green); or
3) Tenancy by entirety is abolished as part of old regime; or
4) W has same rights as single females; but single females cannot hold
tenancy by entirety so she has no new rights.

III) Rights and Duties of Cotenants

A) Partition
1) Partition in Kind – divide property in separate tracks – divide by
percentages owned.
2) Partition by Sale – sell property and split the proceeds
3) Common law favors in kind because the tenants are able to retain the
land. Also, in partition by sale, the buyer knows that the land has to be sold and will bid
less. Also, a problem with partitioning built land because it is hard to divide an apartment
house, etc.
4) Partition by sale is more common because the parties can do it
themselves they don’t have to go to court.
5) Partition is a matter of RIGHT.
6) Partition available for :
a) joint tenancy
b) Tenancy in common
c) CANNOT partition tenancy by entirety.

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 B) Contribution
1) An action by tenant (in possession) who has paid necessary costs to
preserve property.
2) Examples
a) Principle Mortgage payment – necessary payment (have to pay
contribution)
b) Interest mortgage payment – necessity (of contribution) varies
by state
c) Necessity (of contribution) of Property taxes vary by state

3) Two Rules for Contribution

a) A cotenant out of possession must share necessary expenses
whether or not the cotenant has been ousted. However, it is difficult to get any remedy if
the out of possession cotenant refuses to contribute. Your payments will be refelcted if
property is partitioned.
b) A cotenant not in possession has no obligation to contribute to
unnecessary improvements. Upon partition however, the cotenant who paid for the
improvements received credit to the extent that the improvements increased the
property’s fair market value.

C) Accounting
1) An action brought by non-possessory co-tenant for money generated by
rental value or mesne ( The profit earned from property). The only time that this action
would truly benefit the out of possession cotenant is when the property had raw minerals
that were being sold for profits. Then the out of possession tenant could get half the
rental value and the mesne value of mineral sales.
a) Majority Rule – the non-possessory co-tenant must prove an
ouster to get an accounting. This is a very difficult burden to prove.

D) Examples of Contribution and Accounting.

1) Majority Rule: requires ouster to get accounting.
a) Seesholts v. Beers - Ex-wife brings action of accounting for
half proceeds of property and loses because she cannot prove she was ousted by ex-
husband. She voluntarily leave the property.
b) Proving ouster is a fact-situation – have to prove that you were
forced to leave. Is it better to stay or leave as a cotenant?
i) Stay – have to place to live and if you try to leave, it is
difficult to prove ouster. This is the better choice.
ii) Leave – go find another place to live and won’t be able
to recover unless prove ouster. Take on additional costs because have to get new place to
live and pay contribution.
c) Heavy burden of proof is on the party out of possession to prove
ouster.

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 d) Statute of Anne – cotenant is entitled to recover proportional
share of rent from third parties renting land, whether or not they were ousted. Can
recover because it is not assumed that the cotenant gave consent to rent property.
- Can’t recover for both ouster and Statute of Anne.
2) Minority Rule (Cohen rule) – some states don’t worry about ouster.
Only thing that has to be proved is that they were a cotenant.

IV) Marital Property Rights

A) Rights at death
1) Dower – wife gets life estate on 1/3 of real property of husband that he
had at any time during the marriage. (If property was sold, have wife waive all rights to
that land in the deed.)
2) Curtesy – At wife’s death, husband got life estate in all wife’s property
as long as a child was born (not necessarily survive).
3) Forced share, Spouse’s election and Spouse’s share – Modern view:
a) use will OR
b) forego will and get share (usually 1/3) for surviving assets.
B) Rights at divorce
1) Community property estate – statute that allows spouse to get ½
property.
2) Gay/Lesbian – not covered by tenancy by entirety or equitable
distribution. Create a trust to ensure beneficiary of surviving spouse OR transfer the land
before death.
3) Equitable Distribution – Property is divided by court according to
principles of equity or fairness, not according to legal title (traditional view).
a) Question: What constitutes marital property? Determined by
state statute.
b) Marital property is all property acquired during marriage, varies
by state, can be interpreted broadly (New York). Elkins v. Elkins
c) Martinez v. Martinez – Whether or not to create equitable
restitution for a wife who raises family while husband puts himself through medical
school. The court says that the statute doesn’t allow for equitable restitution, and that
increasing her alimony would help to accommodate her. Equitable distribution would
grant her a percentage of all future income. The court found this to be too difficult to
determine. They allowed for an alternative remedy of alimony.
*dissent says alimony is inadequate because it is designed to deal with need, whereas the
wife is not concerned with need, she would like compensation for loss (her station in life)
d)Bold v. Bold – Is there equitable reimbursement when one party
is unjustly enriched by enhanced earning capacity as a result of the other party’s
contribution. The court says that she is entitled to equitable reimbursement to the extent
that her contribution to his education exceeds the bare minimum required by law. Ie. If
she bought his books, she gets money for books, if she paid tuition, she gets tuition
money. Alimony is infrequent and when granted, it is very little.
*dissent is typical of a court that does not recognize equitable reimbursement bc.
1. It is not in line with the statute
2. There is no property in a career

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 3. Marriage is not a financial investment that can be divided later. All court can
do is to divide equitably and give alimony when needed.

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