Property Law 2

Prenuptial Agreement
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Terms in this set (37)
Prenuptial Agreement
generally enforceable unless there is a lack of voluntariness, is unconscionable, there is insufficient disclosure of information, or if there is substantial injustice.
Uniform Premarital Agreement Act
a prenup is enforceable unless (1) it was unconscionable (moral wrongdoing or gross unfairness) when made and (2) the complaining spouse both did not receive full financial disclosure and did not execute a written waiver of rights.
Ouster
traditional ouster doctrine: no duty to pay rent unless ousted.

some version of constructive ouster (Olivas): out-of-possession tenant could recover rent if the tenant in possession has engaged in conduct that is functionally equivalent to an ouster.

Fault: tenant out of possession can only recover rent if separation is not their fault because they moved out first or engaged in wrongful conduct.

Need: a focus on resources and need (equitable distribution on divorce). Usually would be dealt with in divorce proceedings.
Duty to Support
in separate property states. Equitable distribution rules such as alimony often apply. On death there is forced share of decedent's estate.
Commingling
separate property commingled with community property is still separate property if it can be traced. If not, will be treated as community property.
Transmutation
spouses can convert community property to separate property and vice versa by agreement.
Term of Years
any specified period, landlord retains reversion or a remainder for third party, and ends automatically. Death does not terminate. Can only evict for material breach, not without cause.
Periodic Tenancy
renews automatically. Notice is required to terminate, usually for one period.
Tenancy at Will
can be ended with no notice from either party, is usually written, and traditionally death terminates.
Tenancy at Sufferance
a tenant rightfully in possession who wrongfully stays after their leasehold has been terminated; a holdover tenant.
Landlord's Rightsreceive rent; have the premises intact and not damaged; reversion; eviction of the tenant if the tenant breaches material terms of the lease; no obligation to renew.Exceptions to a Landlord's Right to Evictantidiscrimination laws; statutory protections (rent control, conversion of apartments into condominiums, etc.), federal laws on public housing; tenant protections against retaliatory evictions.Landlord's Remedies when Tenant Breaches and Refuses to LeavePossession and back rentLandlord's Remedies when Tenant Holds Over But Pays Rentaccept the new tenancy or sue for possession. Majority rule: new tenancy is periodic and based on rent payment.Landlord's Remedies when Tenant Breaches and Moves Outaccept tenant's surrender (back rent and damages) or refuse tenant's surrender and re-let on the tenant's account.Landlord's Duty to Deliver Possessionmajority rule: duty to deliver possession of the rented premises to the tenant at the beginning of the leasehold. Minority rule: only has duty to deliver the right of possession and the new tenant must remove the old tenant.Assignmentwhen a tenant assigns the whole lease to the subtenant, forfeiting their property interest while doing so. Subtenant now has privity of estate with the landlord, and the assignee and subtenant have privity of estate. Westmoreland: injunctive relief to pay rent from a sublessee is an enforceable equitable remedy.Tenant's Right to Assign or Subletwhere landlord consent is required: Westmoreland/majority rule: landlord may arbitrarily withhold consent subject only to discrimination law. Minority rule: reasonableness. Where the lease is silent: sublet/assign is allowed unless prohibited.Constructive Evictionactions of a landlord that so materially disturb or impair a tenant's enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for any further rent.Partial Constructive EvictionMajority rule: not acknowledged in most jurisdictions because it poses a slippery slope of when to move out. Minority rule: will allow partial constructive eviction. Less used because of implied warranty of habitability.Constructive Eviction DefenseWestmoreland: a tenant must (1) provide landlord with notice of the defect/condition; (2) allow the landlord reasonable time to cure the problem; and (3) vacate the premises within a reasonable period.Implied Warranty of Habitability (elements)(1) provide landlord with (specific) notice of the defect/condition and (2) give reasonable time to cure the defect. Westmoreland/majority rule: leased premises must be fit for human habitation and meet "bare living requirements" or comply with a similar standard regardless of the housing code. Do not need housing code to imply that the warranty of habitability has been breached. Usually quiet enjoyment is breached as well. Minority rule: landlord breaches implied warranty of habitability only by breaking the housing code; demands only substantial compliance and not literal compliance with the code. Objective test: must be so serious that a reasonable person would find the premises uninhabitable. De minimis defects are insufficient.Tenant's Options Re: Implied Warranty Breaches(1) rescission (move out before the end of the lease); (2) remain in possession and withhold rent; (3) remain in possession and use rent abatement; (4) remain in possession and use the "repair and deduct" remedy; (5) remain in possession and sue for damages/injunction; (6) utilize administrative remedies; (7) bring a claim for criminal penalties (only in extreme cases, is usually codified); or (8) bring a claim for compensatory damages. Rules are dependent on jurisdiction.Hillview Factors in Deciding Retaliatory Evictionwhether the landlord's decision was: (1) a reasonable exercise of business judgment; (2) a good faith desire to dispose of the entire leased property free of all tenants; (3) because they lacks the financial ability to repair the leased property; (4) unawareness of tenants' activities protected by statute; (5) was not acting at the first opportunity after learning of the tenant's conduct; (6) not discriminatory.5th Amendment (public use clause)"nor shall private property be taken for public use, without just compensation."Just CompensationFair market value. No rights to moving costs, business goodwill, or other consequential losses under the constitution. Will get fair market value for partial takes of the land, and offsets are allowed. No required compensation for emotional attachments.Eminent Domainjust compensation for all vested interests.Kelo v. New London (2004)held that economic development by a private actor qualifies as valid public use under the takings clause for eminent domain. Kelo test: for eminent domain, the taking must be (1) reasonably necessary and (2) for reasonably foreseeable needs. "Public use" was broadly interpreted to mean "public purpose." Concurrence (Kennedy): even with a deferential standard of review, a taking should not survive the public use test if there is a clear showing that its purpose is to "favor a particular private party, with only incidental or pretextual public benefits." Dissent (O'Connor): would have imposed a "heightened" standard of judicial review for takings justified by economic development.Pennsylvania Coal Co. v. Mahon (1922)held that a regulation becomes a taking when it "goes too far."Penn Central (1978)held that a city may place restrictions on the development of individual historic landmarks without effecting a taking requiring just compensation. Dissent (Brandeis): thought that legislatures should have the power to prohibit uses of land that seriously threaten public welfare without any just compensation because restriction upon a use does not become inappropriate whenever it is not compensated, even though it alternatively could be prevented through such compensation.Penn Central Factors(1) economic impact on the property; (2) interference with investment-baked expectations; and (3) character of government action.Miller v. Schone (1928)the public interest outweighs the property interest of the individual, and the state may use its police power to preserve the public interest, even if that means property must be destroyed.United States v. Sioux Nation (1980)the 1877 Act constituted a taking of tribal property, which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty. That taking implied an obligation on the part of the government to provide just compensation to the Sioux Nation.PruneYard (1980)found no taking when a large shopping center was required to allow free expression and petition on its property. Stated that the landowner could adopt time, place, and manner restricts that would minimize any interference with commercial functions.Loretto (1982)held that a permanent physical occupation is a taking without regard to whether the action achieves an important public benefit or has only minimal economic impact on the property owner. Dissent (Blackmun): would not hold that there has been a taking because the invasion is slight and does not amount to a large physical intrusion.Lucas (1992)held that a regulation is a taking which requires just compensation if it prohibits "all economically viable use of the land" and the proscribed use could not have been prohibited under a given state's nuisance law. Dissent (Blackmun): argues that the majority has created a new rule and exception in takings law that are not based on precedent and would apply in a situation that does not exist in the case at bar.Te-Hit-Ton Indians (1955)held that the take or use of Native American land does not require just compensation by the U.S. government.