Session 15 Notes

Property class session 15 - Essay review covering landlord-tenant, adverse possession, future interests, and restraint on marriage

Property - Session 15 Notes

Essay Question 20 (Fall 2019): Landlord-Tenant

Facts Overview

• Larry (landlord) leased apartment to Tina (tenant) for one year at $100/month
• Lease commenced December 1, 2018
• Lease contained provision: Tina cannot sublease without Larry’s written consent
• Tina accepted into medical school, decided to move out of state
• May 1, 2018: Tina “subleased” remainder of lease to Al
• Upon moving in, Al discovered: no running hot water + electrical wires hanging from ceiling
• Al informed Larry of issues; Larry said he’d fix when he obtains enough money
• Al reported apartment to building inspector
• Larry contacted Al after receiving notice, raising rent extra $100/month
• June 1, 2019: Al tendered apartment key and note indicating he was vacating
• Larry repeatedly contacted Al for lost rent; Al refused to pay

Issue 1: Type of Lease Created

Rule: Term of years lease

• Fixed duration predetermined
• No notice of termination required
• Statute of Frauds: Does NOT need to be in writing because terms don’t exceed one year
• However, here the lease provision indicates it WAS in writing

Issue 2: Restraint Clause (No Transfer Provision)

Rule: Restraint clauses are strictly construed in favor of tenant

• Lease prohibited subleasing without written consent
• Therefore: Tenant cannot sublease BUT tenant IS free to assign
• Specifically prohibited action vs. general freedom principle

Issue 3: Assignment vs. Sublease

Majority View: Tina’s transfer to Al = ASSIGNMENT (not sublease despite language)

Analysis - Intent and Surrounding Circumstances:

1. Tina moved out of state (no intent to return)
2. Tina transferred entire remaining duration of lease to Al
3. Measure on intent and surrounding circumstances

Key Facts Supporting Assignment (distinguish higher-scoring answers):

• Al informed Larry directly of hot water/electrical wire issues
• If sublease: Al would bring issues to Tina → Tina to Larry
• Direct communication with landlord = consistent with assignment
• Under assignment: Everyone can sue each other (all in privity)

Result: Al is assignee

• Privity of Estate: Between Larry and Al
• Privity of Contract: Still between Larry and Tina

Issue 4: Implied Warranty of Habitability

Facts: No running hot water + electrical wires hanging from ceiling

Rule:

• Implied in every lease (cannot write yourself out of it)
• No requirement to vacate (tenant can assert while still living there)
• Notice required: Al informed Larry ✓

Analysis:

• No hot water likely deems entire apartment uninhabitable (affects entire premises contemplated under lease)
• Electrical wires hanging (live or not) = aesthetically displeasing at minimum, dangerous if live
• Safety concerns can be discussed under habitability
• Rent amount ($100/month) should NOT factor into analysis

Landlord’s Duty: Landlord has duty to make repairs (can discuss but bigger issue is IWH)

Issue 5: Constructive Eviction

Elements (must discuss):

1. Substantial interference
2. Notice to landlord (Al informed Larry ✓)
3. Landlord fails to remedy within reasonable time
4. Tenant vacates

Analysis:

• Cannot find constructive eviction from facts alone until Al vacates
• Al tendered key and note on June 1, 2019 = vacated
• This potentially completes constructive eviction claim
• “No reasonable person could live here” standard

Issue 6: Retaliatory Eviction - DEEP ISSUE

Timeline:

• Al reported to building inspector
• Larry received notice of investigation
• Larry raised rent extra $100/month
• All within one month (May 1 to June 1)

Rule: If landlord raises rent within 90-120 days after tenant reports code violations, it’s PRESUMED retaliatory

• Period is 0-90 days or 0-120 days (depending on jurisdiction)

Alternative Explanations - Key Analysis:

1. Retaliatory motive: Punishing Al for reporting to inspector
2. Good faith motive: Larry needs money to make repairs (as he stated earlier)

Critical Point: Cannot accurately conclude which without more facts

• Both explanations are plausible
• Discuss both sides of presumption
• Larry’s stated reason: raising money for repairs
• BUT: Cannot unilaterally raise rent during lease term

Issue 7: Offer to Surrender vs. Abandonment

Facts: Al tendered key and note to Larry indicating vacating

Analysis:

• Looks like offer to surrender
• Contingent upon Larry accepting
• Larry denied it (repeatedly contacted Al for lost rent)
• Treated as abandonment

Issue 8: Duty to Mitigate

Majority Rule: Landlord has duty to mitigate by locating new tenant

Facts:

• Larry repeatedly contacted Al for rent
• 6-month period (June 1 to December 1)
• No indication Larry attempted to locate new tenant

Analysis:

• Did Larry use reasonable diligence to locate new tenant? NO
• Only diligence shown: collecting rent from Al (who abandoned)
• Minority view: No duty to mitigate (mention in one sentence, focus on majority)

Result: Larry will have problem collecting rent for 6-month period due to failure to mitigate

Exam Tips

• Term of years lease when specific dates provided
• Pull as many facts as possible to prove assignment vs. sublease
• IWH does NOT require tenant to vacate
• Retaliatory eviction requires analysis of landlord’s motive (not always clear-cut)
• Duty to mitigate is majority rule (always apply majority unless told otherwise)

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Essay Question 3: Future Interests, Adverse Possession, Restraint on Marriage

Facts Overview

• Aura (wealthy woman) owns Charmacre in FSA (10-acre parcel in countryside)
• Northern 5 acres: improved with 3-bedroom cottage, lawns, flower gardens
• Thick stand of trees separates northern and southern halves
• Southern half: undeveloped, not visible from cottage
• Many years ago: Aura invited Fran and Ellen (sisters, not related to Aura) to live as companions
• Aura has one son Sam and one grandson Glenn
• Aura wants to provide both Ellen and Fran place to live when she dies
• Aura aware: Ellen is compulsive shopper; Fran falls in love with unsuitable men
• January 1988: Aura tells Fran and Ellen she will devise Charmacre to Fran
• Ellen (furious) calls Adam (lives near Charmacre)
• Ellen offers to sell southern 5 acres to Adam for $15,000
• Adam pays Ellen, who gives Adam deed to southern 5 acres (Ellen uses money for credit card debt)
• March 1988: Adam cultivates and fences one-half of the 5 acres, plants vegetables
• May 1988: Aura dies
• Aura’s will: All property to Sam EXCEPT Charmacre
• Devise: “Charmacre to Fran and her heirs, as long as she remains unmarried and lives on Charmacre. Otherwise, to Glenn for life, then to Glenn’s issue who reached the age of 25.”
• 1992: Adam gives up on organic garden (never profitable) - used only 2.5 acres
• Bill (another neighbor) asked Adam if he could try; Adam said “good luck” and drove off
• December 2008: Fran married Mike; Fran and Mike live on Charmacre
• Bill is cultivating southern 5 acres
• Sam and Glenn both alive; Glenn has no children yet

Issue 1: Initial Ownership - FSA

Aura owns Charmacre in Fee Simple Absolute

Issue 2: Fraudulent Conveyance by Ellen

Facts: Ellen sold southern 5 acres to Adam

• Ellen did NOT own the property (Aura owned it)
• Potentially fraudulent sale

Analysis: Can Ellen sell property she doesn’t own? NO

• But creates basis for adverse possession claim

Issue 3: Adverse Possession - Adam

Common Law Period: 20 years

When does adverse possession begin?

• March 1988: Adam begins using land (cultivates, fences, plants vegetables)
• Adam is adverse possessor starting this date

Color of Title / Constructive Possession - IMPORTANT:

• Adam received defective deed for entire southern 5 acres (Ellen didn’t own it)
• Adam only actually used 2.5 acres (half of what deed conveyed)
• Rule: If adverse possessor enters under color of title (defective deed purporting to convey title) AND uses SOME of parcel, can claim adverse possession of ALL property described in deed
• Result: Adam can potentially claim all 5 acres even though only used 2.5 acres

Open and Notorious:

• Southern half not visible from northern half (thick stand of trees)
• Issue: Is it open and notorious if can’t see it?
• Counter: Reasonable inspection - can walk around, it’s 5 acres of your land

Issue 4: Tacking Between Adam and Bill - CRITICAL ANALYSIS

Facts:

• 1992: Adam abandoning effort, packing up
• Bill asks “can I try to make a go at it?”
• Adam says “good luck” and drives off

Rule: Tacking requires privity between successive adverse possessors

• Strong indication of privity: instrument running between individuals (deed, contract, etc.)

Analysis:

• NO formal instrument between Adam and Bill
• No deed, no contract, no handshake
• “Good luck” = NOT formal transaction
• Adam was leaving REGARDLESS of Bill intervening
• Bill just coincidentally came as Adam was leaving

Competing Arguments:

1. Against tacking: No legal link/connection; no meeting of minds; no instrument; good luck ≠ real estate transaction
2. For tacking (weaker): Conduct might imply transfer? (Be careful with this argument)

Professor’s Position: Stretch to say it’s tacking; likely NO privity

Result:

• If no tacking: Bill’s adverse possession period starts fresh in 1992
• As of December 2008: Only 16 years (insufficient for 20-year common law period)
• Bill is still in process of adversely possessing (not complete)

Issue 5: Abandonment (Not Independent Issue)

Analysis: Part of tacking discussion

• Adam abandoning his effort (moving gardening supplies, giving up)
• Bill coincidentally arrived
• Not formal independent issue - just supports lack of privity

Issue 6: Future Interests Created by Will

Devise: “Charmacre to Fran and her heirs, as long as she remains unmarried and lives on Charmacre. Otherwise, to Glenn for life, then to Glenn’s issue who reached the age of 25.”

Fran’s Interest:

• Fee Simple Subject to Executory Limitation (FSSEL)
• OR Fee Simple Determinable (depending on reading of “as long as”)
• Defeasible fee interest

Glenn’s Interest:

• Shifting Executory Interest in life estate
• Shifts from Fran to Glenn upon breach of condition

Glenn’s Issue:

• Contingent Remainder (must reach age 25)
• Age contingency provision

O (Aura’s heirs/Sam):

• Potentially Reversion (if all future interests fail)

Issue 7: Rule Against Perpetuities

Common Law: Apply RAP (NOT U.S. RAP - common law jurisdiction specified)

Glenn’s Issue - “who reached the age of 25”:

• Age contingency typically triggers RAP void
• BUT: Glenn’s executory interest is for life
• Glenn’s interest will vest or fail within Glenn’s lifetime (not floating in perpetuity)
• VALID - will either vest or not within life in being (Glenn)

Issue 8: Restraint on Marriage - KEY ISSUE

Provision: “as long as she remains unmarried and lives on Charmacre”

General Rule: Restraints on marriage can be void as against public policy

Upholding Restraint - Analysis:

Factor 1 - Intent to Provide Support (NOT penalize):

• Aura wants to provide for Fran and Ellen when she dies (stated in facts)
• Fran falls in love with unsuitable men (Aura’s perception)
• Providing support until marriage (when spouse will provide support)

Factor 2 - DURATIONAL Language (CRITICAL - Casebook p. 318):

• “As long as” = words of duration
• Durational limitation has evidentiary value indicating motive to provide support for certain period
• Contrast: Condition subsequent (“but if”) = thought to penalize marriage

Rule from Casebook: “A devise to A for life, so long as A remains unmarried, then to B, is thought to have dominant motive of providing support until marriage, when presumably A’s spouse will provide support, and NOT for purpose of discouraging marriage.”

Application:

• Duration language (“as long as”) + intent to provide = likely UPHELD
• Not penalizing marriage, but providing support until spouse takes over

Alternative Argument (creative):

• Devise says “Fran and her heirs” (not “for life”)
• Might show intent beyond mere support
• Interesting but secondary to durational analysis

Issue 9: Restraint on Alienation

Provision: “lives on Charmacre”

Analysis:

• Requiring her to live on property = cannot sell it
• Likely upheld (see Odd Fellows case)
• Not unreasonable restraint

Issue 10: Breach and Future Interest Holders

Facts: December 2008 - Fran married Mike

Analysis:

• Breach of condition (“remains unmarried”)
• Glenn’s executory interest kicks in
• Fran loses interest, Glenn becomes present possessor

CRITICAL RULE - Adverse Possession and Future Interests:

• Adverse possessor CANNOT adversely possess a future interest holder
• This is general rule (highlighted in purple in notes)

Application:

• If Bill succeeded in adversely possessing Fran’s interest (hypothetically)
• Once breach occurs and Glenn takes possession
• Adverse possession clock starts ALL OVER AGAIN
• Bill can only adversely possess whatever interest holder is present
• Cannot adversely possess Glenn’s future interest

Further Complication:

• Even if someone adversely possessed Glenn for 20 years
• They only get it for Glenn’s life (Glenn has life estate)
• When Glenn dies, reverts back to O (Aura’s successors)
• Clock starts over AGAIN

Exam Tip: TATTOO TO BRAIN - “Adverse possessor cannot adversely possess a future interest holder”

Issue 11: Who is Being Adversely Possessed?

Bill would be adversely possessing against Fran (present possessor)

• NOT against Glenn (future interest holder)
• NOT against Adam (Adam never owned)

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Essay Question 18 (Fall 2017): Joint Tenancy and Adverse Possession

Facts Overview

• 1975: Andy owned Blackacre in FSA
• Andy conveyed by written deed to Beth, Chris, and Dahlia “jointly with right of survivorship”
• Deed provided: “If Blackacre or any portion used to consume, sell alcohol, Andy shall have right to immediately re-enter and repossess”
• 1976: Beth opened small bar on Blackacre
• 1980: Dahlia (nervous about alcohol) conveys her interest to Edward
• 1982: Chris drafted will devising his interest to Frank
• 1983: Chris died
• 1984: Andy learned Beth had started selling alcohol; took no action
• 1985: Frank moved onto Blackacre (only party living there)
• Frank declared he’s sole owner, posted no trespassing signs, changed locks, paid all expenses
• 1997: Edward and Beth brought action against Frank for trespass
• Statute: 10 years

Issue 1: Type of Co-Tenancy Created

Rule: Modern law - specific language showing intent to create joint tenancy

Analysis:

• “Jointly” = establishes some type of co-tenancy
• “with right of survivorship” = evidences intent for full survivorship to last remaining survivor
• Result: Joint Tenancy between Beth, Chris, Dahlia

Ownership: Each has 33.33% interest initially

Modern Law Note:

• Do NOT discuss four unities (Time, Title, Interest, Possession) unless common law specified
• Modern law: Just need specific language of grantor’s intent

Issue 2: Fee Simple Subject to Condition Subsequent

Provision: “If Blackacre…used to consume, sell alcohol, Andy shall have right to immediately re-enter and repossess”

Analysis:

• “If…Andy shall have right to re-enter” = condition subsequent language
• FSSCS for Beth, Chris, Dahlia
• Right of Entry (power of termination) for Andy
• NOT automatic forfeiture - Andy must exercise right

Issue 3: Potential Breach by Beth (1976)

Facts: Beth opened bar on Blackacre

Analysis:

• Bar could be water bar (not necessarily alcohol)
• Potential breach but not automatic forfeiture
• Adverse possession does NOT begin until Andy exercises right of entry
• If everyone loses interest (not just Beth) upon breach if Andy re-enters

Issue 4: Joint Tenancy Severance - Dahlia to Edward (1980)

Facts: Dahlia conveys her interest to Edward

Rule: Conveyance severs joint tenancy as to transferor’s interest

Result:

• Edward: 33.33% as tenant in common
• Beth and Chris: Combined 66.66% as joint tenants between themselves

Analysis (keep short):

• Dahlia sold her interest → severed her interest
• Edward becomes tenant in common with B and C
• Keep track of percentages

Issue 5: Attempted Devise by Will - Chris (1982-1983)

Facts: 1982 - Chris drafted will devising his interest to Frank; 1983 - Chris died

Rule: Joint tenancy interest CANNOT be devised by will

• Will has no effect until death
• At death, survivorship right trumps
• No severance from will alone

Result:

• Will = just pixels/ink, no legal significance
• Chris dies → Beth gets Chris’s 33% via right of survivorship
• Frank gets NOTHING

State of Ownership After Chris’s Death:

• Beth: 66.66% (her original 33% + Chris’s 33%)
• Edward: 33.33%
• Both as tenants in common (no more joint tenancy once only one JT holder remains)

Issue 6: Andy Learns of Breach (1984)

Facts: Andy learned Beth selling alcohol; took no action

Analysis:

• Breach occurred but Andy didn’t exercise right of entry
• Beth’s interest NOT yet adverse
• Condition subsequent requires action by right-of-entry holder

Issue 7: Adverse Possession - Frank (1985)

Facts:

• Frank moved onto Blackacre
• Only party living there
• Declared he’s sole owner
• Posted no trespassing signs
• Changed locks
• Paid all expenses

Who is Frank?: Random guy, not mentioned before (will was ineffective)

Analysis - Elements of Adverse Possession:

1. Actual Occupancy: Living there ✓
2. Open and Notorious:
   • Declared sole owner
   • No trespassing signs
   • Changed locks
   • All collectively show notice ✓
3. Exclusive:
   • No trespassing signs
   • Only party living there
   • Excluding everyone but himself ✓
4. Hostile/Adverse:
   • Without consent
   • Declared sole owner
   • Came out of nowhere ✓
5. Continuous: 1985-1997 = 12 years ✓

Statutory Period: 10 years (given)

Result: Frank SUCCEEDS in adverse possession (12 years > 10 years)

No Ouster Issue:

• Ouster is issue among co-tenants
• Frank is NOT co-tenant (random adverse possessor)
• Therefore no ouster discussion needed

Issue 8: Who Was Frank Adversely Possessing?

Frank adversely possessing against Beth and Edward (present possessors)

• NOT against Andy (future interest holder - right of entry)

Issue 9: Effect of Andy’s Right of Entry

Complex Issue:

If Andy never exercises right of entry:

• Frank succeeds against Beth and Edward
• Takes their interests

If Andy exercises right of entry:

• Everyone loses interest (Beth, Edward, Frank)
• Andy takes possession
• Adverse possession clock starts over (now against Andy)
• Frank would need another 10 years against Andy

Why?: Cannot adversely possess future interest holder

• Andy holds right of entry (future interest)
• Until Andy exercises it and becomes present possessor
• Adverse possession runs against present possessors only

Exam Tips

• Modern law: Don’t discuss four unities unless common law specified
• Joint tenancy severance affects only transferor’s share
• Will cannot devise joint tenancy interest (survivorship trumps)
• FSSCS = not automatic forfeiture (grantor must act)
• Adverse possession: collective facts establish elements
• Ouster only applies between co-tenants
• Future interest holders protected from adverse possession until they become present possessors

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Key Concepts and Rules

Assignment vs. Sublease

Majority View: Look to intent and surrounding circumstances

• Transfer of entire remaining duration = assignment
• Retention of any part of term = sublease

Privity Consequences:

• Assignment: Everyone in privity with everyone (all can sue each other)
• Sublease: Landlord-Tenant (privity of contract); no privity between landlord-sublessee

Evidence of Assignment:

• Transferee communicates directly with landlord
• No intent to return to premises
• Entire remaining term transferred

Restraint Clause

Rule: Strictly construed in favor of tenant

• Cannot sublease → CAN assign
• Cannot assign → CAN sublease
• Cannot assign OR sublease → stuck

Retaliatory Eviction

Elements:

1. Tenant reports code violation or exercises legal right
2. Within 90-120 days (0-90 or 0-120 depending on jurisdiction)
3. Landlord takes adverse action (raise rent, decrease services, evict)

Presumption: Action is retaliatory

Rebuttal: Landlord can show good faith reason

• Must analyze whether punishment or legitimate business reason
• Facts may not clearly establish - discuss both sides

Duty to Mitigate

Majority Rule: Landlord must use reasonable diligence to locate new tenant Minority Rule: No duty to mitigate (one sentence mention)

Always apply majority unless told otherwise

Tacking in Adverse Possession

Rule: Successive adverse possessors can combine their periods IF there is privity

Privity: Legal relationship/instrument between possessors

• Deed, contract, will, formal transaction
• “Good luck” ≠ sufficient
• Conduct alone usually insufficient

Without privity: Clock starts fresh with new possessor

Color of Title / Constructive Possession

Rule: If adverse possessor:

1. Enters under defective deed purporting to convey title (color of title), AND
2. Actually uses SOME of the parcel

Result: Can claim adverse possession of ALL property described in deed

• Not limited to portion actually used

Restraint on Marriage

Valid Restraints (providing support):

• Durational language: “as long as,” “while,” “during”
• Shows intent to provide support until marriage (when spouse provides)
• Coupled with facts showing intent to support

Invalid Restraints (penalizing marriage):

• Condition subsequent: “but if,” “provided that”
• Shows intent to punish/discourage marriage

Key: Casebook page 318 - durational limitation = evidentiary value of support motive

Adverse Possession and Future Interests - CRITICAL RULE

General Rule: Adverse possessor CANNOT adversely possess a future interest holder

Application:

• Can only adversely possess present possessory interest
• When future interest becomes possessory (breach, death, etc.)
• Clock starts completely over
• New adverse possession period needed against new present possessor

Exception: Even if succeed, only get interest for duration of that estate

• E.g., if adversely possess life tenant for 20 years, only get it for life tenant’s remaining life

Joint Tenancy Severance

Methods That Sever:

• Inter vivos conveyance (sale, gift during life)
• Mortgage (in some jurisdictions)
• Partition

Methods That Do NOT Sever:

• Will/devise (no effect until death; survivorship trumps)
• Lease (in most jurisdictions)

Effect of Severance:

• Only severs as to transferor’s share
• Severed share becomes tenancy in common
• Remaining joint tenants continue as joint tenants between themselves

Common Law vs. Modern Law

Adverse Possession Period:

• Common law: 20 years
• Modern/statutory: Determined by jurisdiction statute

Joint Tenancy Creation:

• Common law: Four unities required (Time, Title, Interest, Possession)
• Modern: Specific language showing intent (don’t discuss four unities unless told)

Rule Against Perpetuities:

• Common law RAP vs. U.S. RAP (wait-and-see, etc.)
• If “common law jurisdiction” specified: Only apply common law RAP

Exam Strategy Tips

1. Always apply majority rule unless told otherwise (mention minority in one sentence)

2. Pull all available facts to support legal conclusions (distinguishes higher scores)

3. Don’t say “facts are silent” if absence is obvious

   • E.g., “facts are silent about an instrument” when someone is driving away = weak

4. Track percentages in co-tenancy problems

5. Discuss both sides when facts are ambiguous (e.g., retaliatory eviction with alternative explanations)

6. Intent language matters:

   • “Going to give” (future) ≠ “I give” (present conveyance)
   • “As long as” (duration) vs. “But if” (condition)

7. Acronyms: Can use but must define first

   • “Fee Simple Absolute (FSA)” then can use FSA

8. Issue spotting checklist for landlord-tenant:

   • Type of lease
   • Restraint clauses
   • Assignment vs. sublease
   • Privity relationships
   • Implied warranty of habitability
   • Constructive eviction (if vacate)
   • Retaliatory eviction (if within period)
   • Surrender vs. abandonment
   • Duty to mitigate

9. Future interests analysis:

   • Always start with O’s original interest (FSA)
   • Identify each grantee’s interest
   • Check RAP if applicable
   • Consider restraint on marriage/alienation
   • Remember: can’t adversely possess future interest holder