week6 business law

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Quote of the Day

“It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away.”

Anthony Trollope,

English author

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 (only if sold with the land)

Fixtures --an object considered to be a permanent part of the property.

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.

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.

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).

Types of Estates in Marriage

Tenancy by the Entirety – form of ownership in more than half the states.

The husband and wife each own the entire property, and they both have a right of survivorship.

Community Property – form of ownership in nine states.

Property brought to the marriage or inherited by one spouse may remain individually owned, called separate property.

Income or assets earned during the marriage is community property, which must be equally shared.

Future Interests

Interests that can be sold now, but do not convey possession; this ability to possess may or may not develop later.

Reversion – the coveyor of a life estate in property regains possession after the life tenant dies.

Remainder – a named, third person, gains possession of a property after a life tenant dies.

Possibility of a Reverter – if the conveyor puts a condition on the possession of the property, it reverts to the conveyer if/when the condition is no longer met.

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.)

Easements (cont’d)

Easement by Prescription

An easement by prescription happens when someone makes use of someone else’s 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.

Flood easement

Gives the owner of a dam the right to flood the shores of a lake in emergencies.

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 another’s property.
A mortgage is a security interest in real property, given to the institution loaning a buyer the money to buy real estate.

Sales Contracts and Title Examination

The Statute of Frauds requires that the agreement to sell real property must be in writing.

Must contain names of all parties, precise description of property, price and signatures.

Once an agreement is made, the buyer’s lawyer makes a title search, to ensure that the seller has valid title to the property.

Adverse Possession

To gain ownership of land by adverse possession, the user must prove:

Entry and exclusive possession

Open and notorious possession

A claim adverse to the owner; and

Continuous possession for a statutory period.

Land Use Regulation

Nuisance Law

A nuisance is an unprivileged interference with a the use and enjoyment of property.

Zoning

State laws that permit local communities to regulate building and land use.

Eminent Domain

Eminent domain is the power of the government to take private property for public use.

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.

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.

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.

Landlord’s Duties

The landlord’s first important duty is to deliver possession.

The “English rule” obligates the landlord to remove a previous tenant if he does not leave willingly.

The “American rule” (which is actually the minority rule in the United States) allows the new tenant to either evict the old tenant, or collect rent from her.

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 tenant’s use and enjoyment of the premises, he has constructively evicted her.

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.

Duty to Return Security Deposit

The landlord must return a security deposit after a tenant vacates.
In some states, landlords must pay interest earned on the deposit to the tenant.
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, and sometimes double or triple damages.

Tenant’s Duties

Duty to Pay Rent – this is the tenant’s foremost obligation.
Landlord’s Remedies for Nonpayment of Rent:

Apply security deposit to rent.

Sue tenant for non-payment.

Evict tenant.

Duty to Mitigate – in most cases, the landlord must try to minimize losses by finding a new tenant quickly.

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.

Duty Not to Disturb Other Tenants

This includes the duty to not allow animals to disturb or injure other tenants.

Injuries

Tenant’s Liability

A tenant is generally liable for injuries occurring within the leased premises.

Landlord’s 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.

“Real property law is ancient but forceful. Although real property today is not the dominant source of wealth that it was in medieval England, it is still the greatest asset that most people will ever possess—and is worth understanding.”