Deck 28: Real Property and Landlord-Tenant Law

Question 1

Grey owns a commercial building in fee simple. Grey transfers temporary possession of the building to Haven Corporation. Can Haven transfer possession for even less time to Idyll Company? Explain. (See Ownership Interests.)

Answer 1

It is well settled that in regards to the law of real property that holding title in fee simple absolute represents the highest form of ownership. A fee simple owner can convey the property to another through gift, sale, or through testamentary devise. A fee simple carries with it the four incidents of title: time, title, transfer and possession. The party to whom possession is transferred can transfer his interest

Question 2

The five Learning Objectives below are designed to help improve your understanding of the chapter. After reading this chapter, you should be able to answer the following questions:
What is an easement? Describe three ways that easements are created.

Answer 2

Non-possessory Interests:
Normally, to enjoy rights in a real property one has to take over its possession. However, there are certain exceptions. The types of interest which do not require possession of the real property are termed as Non- possessory Interests.
Easement:
Easement is a type of Non-possessory Interest. An easement is a right granted a party to use another person's land for a specific purpose. It is the right provided by law so that the use of another's property can be limited to a specific manner.
Creation of most of the Easements rights are done by express grant of permission in the contract itself. It may also be created by following:
• When the surrounding circumstance imply the existence of easement interest.
• When one requires to access to his own property.
• When prescription is authorized by the estate, which continues for a long period of time.

Question 3

Eviction. James owns a three-story building. He leases the ground floor to Juan's Mexican restaurant. The lease is to run for a five-year period and contains an express covenant of quiet enjoyment. One year later, James leases the top two stories to the Upbeat Club, which features live music. The club's hours run from 7:00 P.M. to 1:00 A.M. The noise from the Upbeat Club is so loud that it is driving customers away from Juan's restaurant. Juan has notified James of the interference and has called the police on a number of occasions. James refuses to talk to the owners of the Upbeat Club or to do anything to remedy the situation. Juan abandons the premises. James files a suit for breach of the lease agreement and for the rental payments still due under the lease. Juan claims that he was constructively evicted and files a countersuit for damages. Discuss who will be held liable. (See Leasehold Estates.)

Answer 3

Eviction:
When a tenant is removed from the rental property by the landlord it is termed as Eviction.
Covenant of Quiet Enjoyment:
It is a covenant that provides the tenant of a property a promise by the landlord, that the tenant will be able to enjoy the rental property in peace, i.e. without any disturbance by antagonistic claimants.
Person J gave his one floor of his three stories building to Person JU restaurant. It was a five year lease and clearly contained Covenant of Quite Enjoyment. Later the top two floors of the building were given on lease to a club which presented live music.
The music from the club was troubling JU's customers and reducing his sales. JU asked the landlord to handle the situation but J refused talking to club's owner. JU vacates the premises. J sued JU for breach of lease agreement. JU filed countersuit for damages and alleged that he was constructively evicted.
In the above case, JU was given a covenant of quite enjoyment, which provides him with the right to enjoy the property in peace. It was the responsibility of the landlord to deal with any situation where covenant was violated.
JU asked J to talk to the club's owner but he refused to do that, this caused JU to vacate the premises.
Thus, it can be concluded that JU did not breached the lease agreement but was forced to do so by his landlord J. So J will be held liable by the court.

Question 4

Answers to the even-numbered questions in this For Review section can be found in Appendix F at the end of this text.
What are the requirements for acquiring property by adverse possession?

Question 5

The five Learning Objectives below are designed to help improve your understanding of the chapter. After reading this chapter, you should be able to answer the following questions:
What are the requirements for acquiring property by adverse possession?

Question 6

Ownership in Fee Simple. Thomas and Teresa Cline built a house on 76 acres next to Roy Berg's home in Virginia. The homes were about 1,800 feet apart but in view of each other. After several disagreements between the parties, Berg equipped an 11-foot tripod with motion sensors and floodlights that intermittently illuminated the Clines' home. Berg also installed surveillance cameras that tracked some of the movement on the Clines' property. The cameras transmitted on an open frequency, which could be received by any television within range. The Clines asked Berg to turn off, or at least redirect, the lights. When he refused, they erected a fence for 200 feet along the parties' common property line. The 32-foot-high fence consisted of 20 utility poles spaced 10 feet apart with plastic wrap stretched between the poles. This effectively blocked the lights and cameras. Berg filed a suit against the Clines in a Virginia state court, complaining that the fence interfered unreasonably with his use and enjoyment of his property. He asked the court to order the Clines to take the fence down. What are the limits on an owner's use of property? How should the court rule in this case? Why? [ Cline v. Berg, 273 Va. 142, 639 S.E.2d 231 (2007)] (See Ownership Interests.)

Question 7

What is a leasehold estate? What types of leasehold estates, or tenancies, can be created when real property is leased?

Question 8

The five Learning Objectives below are designed to help improve your understanding of the chapter. After reading this chapter, you should be able to answer the following questions:
What is a leasehold estate? What types of leasehold estates, or tenancies, can be created when real property is leased?

Question 9

Commercial Lease Terms. Gi Hwa Park entered into a lease with Landmark HHH, LLC, for retail space in the Plaza at Landmark, a shopping center in Virginia. The lease provided that the landlord would keep the roof "in good repair" and that the tenant would obtain insurance on her inventory and absolve the landlord from any losses to the extent of the insurance proceeds. Park opened a store-The Four Seasons-in the space, specializing in imported men's suits and accessories. Within a month of the store's opening and continuing for nearly eight years, water intermittently leaked through the roof, causing damage. Landmark eventually had a new roof installed, but water continued to leak into The Four Seasons. On a night of record rainfall, the store suffered substantial water damage, and Park was forced to close the store. On what basis might Park seek to recover from Landmark? What might Landmark assert in response? Which party's argument is more likely to succeed, and why? [ Landmark HHH, LLC v. Gi Hwa Park, 277 Va. 50, 671 S.E.2d 143 (2009)] (See Landlord-Tenant Relationships.)

Question 10

Property Ownership. Twenty-two years ago, Lorenz was a wanderer. At that time, he decided to settle down on an unoccupied, three-acre parcel of land that he did not own. People in the area told him that they had no idea who owned the property. Lorenz built a house on the land, got married, and raised three children while living there. He fenced in the land, installed a gate with a sign above it that read "Lorenz's Homestead," and removed trespassers. Lorenz is now confronted by Joe Reese, who has a deed in his name as owner of the property. Reese, claiming ownership of the land, orders Lorenz and his family off the property. Discuss who has the better "title" to the property. (See page 695.)

Question 11

What are the respective duties of the landlord and the tenant concerning the use and maintenance of leased property?

Question 12

What is a fixture, and how does it relate to real property rights?

Question 13

The five Learning Objectives below are designed to help improve your understanding of the chapter. After reading this chapter, you should be able to answer the following questions:
What are the respective duties of the landlord and the tenant concerning the use and maintenance of leased property?

Question 14

ISSUE SPOTTERS
Bernie sells his house to Consuela under a warranty deed. Later, Delmira appears, holding a better title to the house than Consuela has. Delmira wants Consuela off the property. What can Consuela do? (See page 694.)

Question 15

Case Problem with Sample Answer-Adverse Possession. The McKeag family operated a marina on their lakefront property in Bolton, New York. For more than forty years, the McKeags used a section of property belonging to their neighbors, the Finleys, as a beach for the marina's customers. The McKeags also stored a large float on the beach during the winter months, built their own retaining wall, and planted bushes and flowers there. The McKeags prevented others from using the property, including the Finleys. Nevertheless, the families always had a friendly relationship, and one of the Finleys gave the McKeags permission to continue using the beach in 1992. He also reminded them of his ownership several times, to which they said nothing. The McKeags also asked for permission to mow grass on the property and once apologized for leaving a jet ski there. Can the McKeags establish adverse possession over the statutory period of ten years? Why or why not? [ McKeag v. Finley, 939 N.Y.S.2d 644 (N.Y.App.Div. 2012)] (See Transfer of Ownership.)

Question 16

The five Learning Objectives below are designed to help improve your understanding of the chapter. After reading this chapter, you should be able to answer the following questions:
What is a fixture, and how does it relate to real property rights?

Question 17

Real Estate Sales Contracts. A California state statute
requires sellers to provide a real estate transfer disclosure statement (TDS) to buyers of residential property consisting of one to four dwelling units. Required disclosures include information about significant defects, including hazardous materials, encroachments, easements, settling, flooding, drainage problems, neighborhood noise, damage from natural disasters, and pending lawsuits.
Mark Hartley contracted with Randall Richman to buy Richman's property in Ventura, California. The property included a commercial building and a residential duplex with two dwelling units. Richman did not provide a TDS, claiming that it was not required because the property was "mixed use"-that is, it included both a commercial and a residential building. Hartley refused to go through with the deal. Did Hartley breach their contract, or did Richman's failure to provide a TDS excuse Hartley's nonperformance? Discuss. [ Richman v. Hartley, 224 Cal.App.4th 1182, 169 Cal.Rptr.3d 475 (2 Dist. 2014)] (See Transfer of Ownership. )

Question 18

Vern Shoepke bought a two-story home in Roche, Maine. The warranty deed did not specify what covenants would be included in the conveyance. The property was adjacent to a public park that included a popular Frisbee golf course. (Frisbee golf is a sport similar to golf but using Frisbees.) Wayakichi Creek ran along the north end of the park and along Shoepke's property. The deed allowed Roche citizens the right to walk across a five-foot-wide section of the lot beside Wayakichi Creek as part of a twomile public trail system.
Teenagers regularly threw Frisbee golf discs from the walking path behind Shoepke's property over his yard to the adjacent park. Shoepke habitually shouted and cursed at the teenagers, demanding that they not throw the discs over his yard.
Two months after moving into his Roche home, Shoepke leased the second floor to Lauren Slater for nine months. (The lease agreement did not specify that Shoepke's consent would be required to sublease the second floor.) After three months of tenancy, Slater sublet the second floor to a local artist, Javier Indalecio. Over the remaining six months, Indalecio's use of oil paints damaged the carpeting in Shoepke's home. Using the information presented in the chapter, answer the following questions.
1. What is the term for the right of Roche citizens to walk across Shoepke's land on the trail?
2. What covenants would most courts infer were included in the warranty deed that Shoepke received when he bought his house?
3. Can Shoepke hold Slater financially responsible for the damage to the carpeting caused by Indalecio? Explain.
4. Suppose that Slater-to offset her liability for the carpet damage caused by Indalecio-files a counterclaim against Shoepke for breach of the covenant of quiet enjoyment. Could the fact that teenagers continually throw Frisbees over Shoepke's yard outside the second-floor windows arguably be a breach of the covenant of quiet enjoyment? Why or why not?

Question 19

A Question of Ethics-Adverse Possession. Alana Mansell built a garage on her property that encroached on the property of her neighbor, Betty Hunter, by fourteen feet. Hunter knew of the encroachment and informally agreed to it, but she did not transfer ownership of the property to Mansell. A survey twenty-eight years later confirmed the encroachment, and Hunter sought the removal of the garage. Mansell asked a court to declare that she was the owner of the property by adverse possession. [ Hunter v. Mansell, 240 P.3d 469 (Colo.App. 2010)] (See Transfer of Ownership.)
1. Did Mansell obtain title by adverse possession? Would the open occupation of the property for nearly thirty years be in Mansell's favor? Why or why not?
2. Was her conduct in any way unethical? Discuss.

Question 20

Question with Sample Answer-Deeds. Wiley and Gemma are neighbors. Wiley's lot is extremely large, and his present and future use of it will not involve the entire area. Gemma wants to build a single-car garage and driveway along the present lot boundary. Because the placement of her existing structures makes it impossible for her to comply with an ordinance requiring buildings to be set back fifteen feet from an adjoining property line, Gemma cannot build the garage. Gemma contracts to purchase ten feet of Wiley's property along their boundary line for $3,000. Wiley is willing to sell but will give Gemma only a quitclaim deed, whereas Gemma wants a warranty deed. Discuss the differences between these deeds as they would affect the rights of the parties if the title to this ten feet of land later proves to be defective. (See page 694.)

Question 21

FACTS Junior and Wilma Thompson sold twenty-one acres of their fifty acres of land in Lebanon, Missouri, to Walnut Bowls, Inc. The deed expressly reserved an easement to the Thompsons' remaining twenty-nine acres, but it did not fix a precise location. James and Linda Baker subsequently bought the rest of the Thompsons' land.
Decades later, on learning of the easement, a potential buyer of Walnut Bowls' property refused to go through with the sale. Walnut Bowls then put steel cables across its driveway entrances, installed a lock and chain on an access gate, and bolted a "No Trespassing" sign facing the Bakers' property. At about the same time, the Bakers filed a suit in a Missouri state court to determine the location of the easement. Citing the lack of an express location, the court held that there was no easement. The Bakers appealed.
ISSUE Do the Bakers have an easement despite the lack of an express location?
DECISION Yes. A state intermediate appellate court reversed the decision of the lower court and remanded the case for further proceedings. If a grant or other agreement does not precisely fix an easement's location, and it cannot be inferred
from past use, the court is obligated to determine the location.
REASON An easement can be created by deed even though its specific location is not identified. When the site of an easement is not specified at its inception, the location can later be fixed by an express agreement between the parties or inferred from the use of a certain part of the property in a particular way. If the easement is not identified in either of these ways, a court must determine the location. In that determination, the easement holder is entitled to "convenient, reasonable and accessible use."
Here, the grant creating the Bakers' easement did not identify its location. There was no evidence of any later agreement concerning the location, nor was there any way to infer the location from past use. Thus, the Bakers were entitled to have the court determine a route that was convenient, reasonable, and accessible.
WHAT IF THE FACTS WERE DIFFERENT? Suppose that the Bakers' only route to their property was Walnut Bowls' driveway but that the deed had not granted an easement. Could the Bakers have acquired an easement by other means? Discuss.

Question 22

What is an easement? Describe three ways that easements are created.

Question 23

FACTS Jeffrey Stambovsky signed a contract to buy Helen Ackley's house in Nyack, New York. After the contract was signed, Stambovsky discovered that the house was widely reputed to be haunted. The Ackley family claimed to have seen poltergeists on numerous occasions over the previous nine years. The Ackleys had been interviewed about the house in both a national publication (Reader's Digest) and the local newspaper. The house was included on a walking tour of Nyack, New York, as "a riverfront Victorian (with ghost)." When Stambovsky learned of the house's reputation, he sued to rescind the contract, alleging that Ackley and her real estate agent had made material misrepresentations when they failed to disclose Ackley's belief that the home was haunted.
ISSUE Was the omission of the alleged haunted nature of the house a material misrepresentation that would allow Stambovsky to rescind the contract?
DECISION Yes. The court allowed Stambovsky to rescind the contract.
REASON Ackley and her family had created the house's reputation as haunted and profited from that reputation over a number of years. That reputation harmed the resale value of the home, however. Because the Ackleys had created the impairment and knew that it was not likely to be discovered by a purchaser from out of town, they had an obligation to disclose it. They should have brought the impairment to the attention of all prospective buyers, including Stambovsky.
Even though the Ackleys did not actively mislead Stambovsky, they allowed him to sign the contract knowing that he was unaware of the home's haunted reputation. Because they unfairly took advantage of his ignorance, they could not enforce the contract.
FOR CRITICAL ANALYSIS-Ethical Consideration In not disclosing the house's reputation to Stambovsky, was Ackley's behavior unethical because she knew something he did not, or was it unethical because of the nature of the information she omitted? What if Ackley had failed to mention that the roof leaked or that the well was dry-conditions that a buyer would normally investigate? Explain your answer.