October 1, 1998

Possession à common law

How do you get a tenant to leave? Easiest way is to evict for not paying rent

Landlord need to give only a 3 day notice for intent to evict for non-payment in CA.

30 day notice to end lease in CA. Can be started on any day of the month.

Review of Berg v. Wiley

LL says tenant is about to breach lease, so then tries to evict tenant.

• violated health codes
• illegal renovations without permission

advantages to LL in self help:

• time – fast
• easy
• saves court costs
• bargaining positions: forces tenant to sue LL in said of LL having to sue tenant
• can re-rent the premise before the tenant even has a chance to sue

majority rule still allows self help. But hard to know just what constitutes reasonable or permissible force.

Default rule is no self help. What is not clear is if there is an express provision to no self help.

Modern trend is towards not allowing self help. Don’t want to advise client to use self help because states are moving away from allowing self help. Could not be the rule in your state (self help) yet, because the right case has not come up yet.

Moving on… review of the Sommer v. Kridel case:

Does the landlord seeking damages from a defaulting tenant under a duty to mitigate damages by making reasonable efforts to re-let an apartment wrongfully vacated by the tenant?

Common law: Landlord has to wait until end of the lease in order to collect damages.

Modern position:

Contract price minus market price – this is the formula for damages

Common law: cannot get future rent

Contract (CA) – allows collection of future rent. Builds in duty to mitigate. Damages are contract minus market price.

Al jurisdictions that allow future rent build in duty to mitigate.

------------

October 6, 1998

Back rent

Acceleration clauses – makes all rent due payable at time of breach; this is about rent, not damages.

Landlord cannot accept the rent for the remaining time, and then re-rent it; tenant would still have right of possession.

What is difference between rent and damages???

• contract price minus market price equals damages
• rent is a specific obligation

1. duty to mitigate – CA does not have a duty to mitigate
2. can duty to mitigate be negated by lease?
3. Does it eliminate it?

Security deposit hypotheticals – from handout REVIEW STATUTE!!!!!!

1. look to see if there are defects in apartment to see if there are defects. Get landlord and tenant to walkthrough. Also can take pictures. Sign a condition of apartment form or something like this
2. have LL inspect premises. Can you demand that the place is inspected before you move out? Rights for tenants are almost always in the statute.

Getting security deposit back:

• hard to do
• very subjective
• see statutes

tenant may not be responsible for a broken window, but could be responsible for future damage that came through the broken window (storm damage).

Tenants duty to make repairs under common law. But this has changed as the law has moved away from common law. Discuss this in later classes…

-------------------------

October 8, 1998

Reste Realty Corp v. Cooper

T leased a place, but the place habitually flooded. Wanted out of lease.

T not responsible for driveway.

Implied term: tenant only responsible for area possessed.. tenant can withhold rent.

Implied enjoyment – landlord promised not to interfere with tenant’s right of possession. This goes back years, centuries.

Promissory estoppel - ?????

If breach of quiet enjoyment results in constructive eviction, then tenant has right to terminate lease, or withhold rent.

Constructive eviction – tenant can’t use the premises

Quiet enjoyment –

Habitability –

------------

October 15, 1998

Does not matter whether there is a written lease – the implied warranty of habitability is IMPLIED

Default term – governs in the absence of a written agreement. Only if parties do not specify otherwise

Mandatory term – law insists on; parties cannot change this

Express terms:

LL is not responsible for any damages to premises upon leasing. T takes property as is. LL makes no warranty whatsoever as to any condition of property.

Government has an obligation to enforce housing code. Can you sue government to get them to enforce the code? Yes

Remedies

• value as warranted
• value as it
• difference between what it is worth and what the rent is that is being paid. Landlord has to pay tenant the difference.

-------------------------------------------

October 20, 1998

Professor Cynthia Mertens

When market is up, real estate attorneys get very busy. Most real estate attorneys also know a lot about bankruptcy.

Selection of tenants. Discrimination in selection of tenants.

Fair housing act (page 435-36)
– enacted in 1968, amended 1988

Review of discrimination acts.

Act of rejection

Ad must not be discriminatory

Prima facie case of discrimination (plaintiffs)

• apply for and qualified for the housing?
• Was person in a protected class: family status
• Rejected from renting the place
• Housing remained available

Defendant’s rebuttal:

• question person that apartment was rented to instead
• talk to landlord about conversations

----------------------

October 22, 1998

Rent control

Landlord and tenant can be both worse off by rent controls. LL is getting less than he should, and the tenant is paying more than he should.

Unequal bargaining power.

• a strong market position means favorable terms

zoning restrictions – is to keep people about of cities (such as poor people) – example Marin County. Ex: all houses have to have one acre lots.

General conclusion: if considering change in legal rules that fixes terms of a contract, must do the best to see what the effect is of changing any term.

• pro-tenant laws are not often pro-tenant.

More extreme form of restriction: RENT CONTROL

• have to restrain other terms of contract if you are going to have rent control
• generally it is not sensible for landlord to behave in a bad way, bad reputation
• rent control gets rid of need for landlord to keep a good reputation
• rent control also makes a shortage of housing
• rent control locks people into where they are. Over time this means the apartment they are in becomes something they don’t need, but don’t want to leave as they can not get a good deal elsewhere
• RC has seized part of the value of the building, and turned it over to the tenant that happened to be there when the RC started
• It redistributes some of the wealth
• One more problem: how do you get new apartments built? Makes it unattractive to build new buildings. Solution to this is either subsidies, or pas a law saying new buildings are exempt from RC. Problem here then is how does mayor make a binding contract with builder saying that RC will not be applied to that building in the future.

----------------------------

October 27, 1998

Conveyance – transfer of an interest in property

Enfeoffment with livery of seisin

Transfer of ownership in property – used to be a ceremony where an actual clod of dirt was transferred. Ceremony of seisin. Tenants do not have seisin. Seisin is just who has possession of land.

Introduction to Estates in Land and Future Interests

Vocabulary lesson:

1. fee simple – this is the same as the traditional idea of ownership
2. fee tail – "to A and the heirs of her body"; means that it goes to her descendants forever, and then when there are no heirs it reverts to Owner.
3. heirs – those that take by virtue of intestate succession; the people are a legally designated to receive the property
4. escheat – when the property reverts to state when the person dies intestate
5. intestate - when person dies without a will.
6. Residuary clause – all of my property not otherwise provided for shall go to _____ ; a clause like this takes care of everything left over.
7. Vested remainder –
8. "and his heirs" – means fee simple absolute
9. issue – if a heir dies, but has children, the children are issue. Also includes further descendants. Estate is divided by stock. A deceased child’s share goes to his children.

Need "heirs of B and their heirs" in order to have a fee simple (?).

B and his heirs - B owns the interest through a fee simple, absolute.

difference between convey and devise: devise means to leave something in a will. A devise can be a will. Convey means a transfer. A conveyance has to be between living people.

-----------------------------

October 28, 1998

Life estate

White case review:

A fee simple of a life estate? Cannot be a fee simple because of the language "not to be sold" . So if it is a fee simple the words "not to be sold" are not effective and have to be dropped. (to make this a forfeiture restraint, would say something about if the house is attempted to be sold, then it goes to the heirs)

Disabling restraint – no power of grantee to transfer title

Forfeiture restraint – if grantee attempts to transfer the title, it is forfeited to another person

How to tell difference between life estate and fee simple:

• say specifically in will
• or say what happens to the remainder interest; what happens after the person dies (who has the life estate)

Baker v. Weeden discussion:

To A for life, remainder to B and his heirs

Can always transfer a life estate

Can’t sell because of the possibility of a reversion. Possibility of children that don’t exist are the problem.

Value of life tenant decreases the older the person gets.

If you sell the property that one owns under a life tenancy, then person with life tenancy gets the interest, and the heirs get the balance when the person dies.

Court attempts to split the difference

-----------------------