Property 2009 w updates by Pamela Evers Attorney at Law Introduction Definition Property consists of legally protected rights and interests a person has in anything with an ascertainable value that is subject to ownership Difference Between Real and Personal Property Ownership rights available for each type of property International Views Re Property Not every culture has the same views of property as the Euroamerican culture In 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 permitted We discuss a distinctly Western view Property Classification Property classified as real or personal Real property includes land everything permanently attached to or under it Personal property is tangible things or intangible stocks intellectual property Real Property Personal Tangible Intangible Nature of Real Property Real property is immovable and includes Land Buildings Trees and vegetation Airspace Subsurface rights Fixtures What are the different types of property Ownership Interests in Real Property Ownership interests are Possessory or Non Possessory A Possessory interest fee simple life or leasehold estate gives the owner a right to possess the land A Nonpossessory interest easement profit or license does not give the owner a right to possess the land Limits on Real Property Rights in property constrained by federal state laws nuisance tax environmental Eminent Domain 5th amendment 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 property Environmental and Contract Law constrain use of land Restrictive Covenants Real estate owners may create agreements that restrict use of real property called restrictive covenants Covenants run with the land and bind subsequent owners of the property Enforceability of covenants depends on purpose nature scope of restrictions Eminent Domain The 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 taking Eminent domain is controversial Kelo v City of New London Facts New London in serious economic decline City authorized private developer to rejuvenate an area that included 115 private properties Most properties in good condition Interestingly nearby Pfizer Pharmaceutical also wanted Fort Trumbull to become a more upscale accessory Typical Ft Trumbull house and map Kelo v City of New London Facts Developer negotiated purchase of most properties but some homeowners had been there many years liked their homes with water views and would not sell Suzette Kelo Kelo v City of New London Procedural 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 valid Case appealed to U S Supreme Court Kelo v City of New London Issue 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 intended Kelo v City of New London Issue 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 London Holding Affirmed in favor of the City Ft Trumbull today Implied Warranty of Habitability Most states impose an implied warranty of habitability on a builder or seller of a residence Essentially a guarantee that the home contains adequate materials and good workmanship Warranty extends for reasonable time Applies to a lease Residents of ratinfested apartment Cal Northridge apartment building after earthquake Leasehold Estates A real property owner lessor grantor agrees to convey right to possess and use property to another lessee grantee for a limited time Lease easement license Lease must be in writing to satisfy Statute of Frauds Lease Types tenancy for years periodic tenancy at will tenancy at sufferance Tenant Rights Obligations Tenant has the duty to pay rent in timely manner Landlord may evict for failure to pay rent Tenant has duties to use premises for proper purposes not to damage premises and not to disturb other tenants If landlord breaches a duty in some states the tenant can withhold rent or repair and deduct cost from rent In all states tenant may sue for damages Tenants generally have duty to mitigate damages Assignments Tenant may or may not have contractual right to assign sublease the premises Generally even if the contract requires that tenant obtain landlord s permission prior to assignment landlord may not unreasonably withhold permission As 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 Landlord Duty 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 tenancy Tenants have the implied right to quiet enjoyment or right to use the property in accordance with the lease and without interference of the landlord Sometimes this puts a burden on landlord to ensure that other tenants do not interfere with quiet enjoyment Eviction Actual eviction if a landlord prevents the tenant from possession landlord has evicted the tenant Constructive eviction if premises are not habitable or substantially interferes with tenant s possession landlord has constructively evicted the tenant Tenant may have right to claim
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