Property© 2009 (w/updates) by Pamela Evers, Attorney at LawIntroductionDefinition: Property consists of legally protected rights and interests a person has in anything with an ascertainable value that is subject to ownershipDifference Between Real and Personal PropertyOwnership rights available for each type of propertyInternational Views Re: PropertyNot every culture has the same views of property as the Euroamerican cultureIn some cultures (e.g., socialist or communist states, tribal communities), individuals cannot own property because property is owned collectively “for the people” with mere use or possessory interests permittedWe discuss a distinctly Western viewRealTangibleIntangiblePersonalPropertyProperty ClassificationProperty classified as real or personalReal property includes land & everything permanently attached to or under it.Personal property is tangible (things) or intangible (stocks, intellectual property).Nature of Real PropertyReal property is immovable and includes: LandBuildingsTrees and vegetationAirspaceSubsurface rightsFixturesWhat are the different types of property?Ownership Interests in Real PropertyOwnership interests are Possessory or Non-PossessoryA Possessory interest (fee simple, life or leasehold estate) gives the owner a right to possess the landA Nonpossessory interest (easement, profit or license) does not give the owner a right to possess the landLimits on Real PropertyRights in property constrained by federal & state laws (nuisance, tax, environmental) Eminent Domain: 5thamendment gives gov‟t the right to “take” private land for public use with just compensation Zoning is State‟s power to control land use without having to compensate owner Restrictive covenants limit how land owners may use propertyEnvironmental and Contract Law constrain use of landReal estate owners may create agreements that restrict use of real property called restrictive covenantsCovenants “run with the land” and bind subsequent owners of the propertyEnforceability of covenants depends on purpose, nature, scope of restrictionsRestrictive CovenantsThe Fifth Amendment guarantees that private property shall not be taken for public use without “just compensation” The key is “just compensation”Rule implies the government has power of eminent domain to effect the takingEminent domain is controversialEminent DomainKelo v. City of New LondonFacts:New London in serious economic declineCity authorized private developer to “rejuvenate” an area that included 115 private properties Most properties in good conditionInterestingly, nearby Pfizer Pharmaceutical also wanted Fort Trumbull to become a more upscale accessory Typical Ft Trumbull house and map Kelo v. City of New LondonFacts:Developer negotiated purchase of most properties, but some homeowners had been there many years, liked their homes with water views, and would not sellSuzette KeloKelo v. City of New LondonProcedural History: City brought a “condemnation” action under the power of eminent domain and plaintiffs brought suit claiming the taking of their properties for private development was not a “public use” Trial court granted permanent restraining order prohibiting the taking of properties for one area but not another and both sides appealed to state supreme court which held all takings validCase appealed to U.S. Supreme CourtKelo v. City of New LondonIssue & Reasoning: “Two polar propositions are perfectly clear” – general rule is that taking from private party for another private party is unconstitutional, but equally clear that transferring property from one private party to another is valid if future “use by the public” intendedKelo v. City of New LondonIssue & Legal Reasoning: “The disposition of this case therefore turns on the question whether the City‟s development plan serves a „public purpose.‟ …defined broadly…“Holding: “The City has carefully formulated an economic development plan…To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development.….Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”Kelo v. City of New LondonHolding: Affirmed in favor of the CityFt. Trumbull todayImplied Warranty of Habitability Most states impose an implied warranty of habitability on a builder or seller of a residenceEssentially a guarantee that the home contains adequate materials and good workmanshipWarranty extends for reasonable timeApplies to a leaseResidents of rat-infested apartment & Cal-Northridge apartment building after earthquakeLeasehold EstatesA real property owner (lessor/grantor) agrees to convey right to possess and use property to another (lessee/grantee) for a limited timeLease, easement, licenseLease must be in writing to satisfy Statute of FraudsLease Types: tenancy for years (periodic), tenancy at will, tenancy at sufferanceTenant Rights & Obligations Tenant has the duty to pay rent in timely mannerLandlord may evict for failure to pay rentTenant has duties: to use premises for proper purposes, not to damage premises, and not to disturb other tenantsIf landlord breaches a duty, in some states the tenant can withhold rent or repair and deduct cost from rentIn all states, tenant may sue for damagesTenants generally have duty to mitigate damagesAssignments Tenant may or may not have contractual right to assign (sublease) the premisesGenerally, even if the contract requires that tenant obtain landlord‟s permission prior to assignment, landlord may not unreasonably withhold permissionAs with other assignments, original tenant (sublessor) has ultimate obligations under the lease for new tenant‟s (sublessee) conduct (unless new lease created)Duties of Lessor/LandlordDuty to deliver possession of the premises at the beginning of the lease term, duty to maintain premises in habitable condition, and duty to return security deposit at end of tenancyTenants have the implied right to quiet enjoyment, or right to use the property in accordance with the lease and without interference of the landlordSometimes this puts a burden on landlord to ensure that other tenants do not interfere with quiet enjoymentEviction Actual eviction: if a landlord prevents the tenant from possession, landlord has evicted the tenantConstructive
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