FIU Property Condemnation Discussion

Debate This:

Property condemnation

Chapter 42. P. 1012

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 two-mile 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. 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?

Debate This:

Under no circumstances should a local government be able to condemn property in order to sell it later to real estate developers for private use.

1012
UNIT SEVEN: Property and Its Protection
for the summer months instead. Derek therefore obtains his landlord’s consent to sublease
the apartment to Ava. Ava is bound by the same terms of the lease as Derek, and the landlord
can hold Derek liable if Ava violates the lease terms. ■
42–4c Termination of the Lease
“Even in Hell the
peasant will have to
serve the landlord, for,
while the landlord is
boiling in a cauldron,
the peasant will have
to put wood under it.”
Russian Proverb
Usually, a lease terminates when its term ends. The tenant surrenders the property to the
landlord, who retakes possession. If the lease states the time it will end, the landlord is not
required to give the tenant notice. The lease terminates automatically.
A lease can also be terminated in several other ways. If the tenant purchases the leased
property from the landlord during the term of the lease, for instance, the lease will be terminated. The parties may also agree to end a tenancy before it would otherwise terminate. In
addition, the tenant may abandon the premises—move out completely with no intention of
returning before the lease term expires.
At common law, a tenant who abandoned leased property was still obligated to pay the rent for
the full term of the lease. The landlord could let the property stand vacant and charge the tenant
for the remainder of the term. This is still the rule in some states. In most states today, however,
the landlord has a duty to mitigate his or her damages—that is, to make a reasonable attempt to
lease the property to another party. Consequently, the tenant’s liability for unpaid rent is restricted
to the period of time that the landlord would reasonably need to lease the property to another
tenant. Damages may also be allowed for the landlord’s costs in leasing the property again.
Practice and Review
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 two-mile 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. 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?
Debate This
Under no circumstances should a local government be able to condemn property in order to sell it
later to real estate developers for private use.
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CHAPTER 42: Real Property and Landlord-Tenant Law
1013
Key Terms
adverse possession 1006
community property 999
concurrent ownership 998
condemnation proceedings 1008
constructive eviction 1010
conveyance 997
deed 1004
easement 1000
eminent domain 1008
eviction 1010
fee simple 996
fixed-term tenancy 999
fixture 995
implied warranty of habitability 1003
joint tenancy 998
leasehold estate 999
license 1001
life estate 997
nonpossessory interest 1000
periodic tenancy 1000
profit 1000
quitclaim deed 1005
recording statute 1005
special warranty deed 1005
sublease 1011
taking 1009
tenancy at sufferance 1000
tenancy at will 1000
tenancy by the entirety 999
tenancy in common 998
warranty deed 1005
waste 997
Chapter Summary: Real Property and Landlord-Tenant Law
The Nature of Real Property
Real property (also called real estate or realty) includes land and structures, subsurface and airspace
rights, plant life and vegetation, and fixtures.
Ownership Interests and
Leases
1. Fee simple—The most complete form of ownership. Owners can use, possess, or dispose of the
property as they choose during their lifetimes and pass on the property to their heirs at death.
2. Life estate—An estate that lasts for the life of a specified individual, during which time the individual is entitled to possess, use, and benefit from the estate. The life tenant cannot use the land in a
manner that would adversely affect its value. The life tenant’s ownership rights cease to exist on
her or his death.
3. Concurrent ownership—When two or more persons hold title to property together, concurrent
ownership exists.
a. A tenancy in common exists when two or more persons own an undivided interest in property.
On a tenant’s death, that tenant’s property interest passes to his or her heirs.
b. A joint tenancy exists when two or more persons own an undivided interest in property, with a
right of survivorship. On the death of a joint tenant, that tenant’s property interest transfers to the
remaining tenant(s), not to the heirs of the deceased.
c. A tenancy by the entirety is a form of co-ownership between married persons that is similar to
a joint tenancy, except that a spouse cannot separately transfer her or his interest during her or
his lifetime unless the other spouse consents.
d. Community property is a form of co-ownership between married persons in which each spouse
technically owns an undivided one-half interest in property acquired during the marriage. This
type of ownership exists in only a few states.
4. Leasehold estates—A leasehold estate is an interest in real property that is held for only a limited
period of time, as specified in the lease agreement. Types of tenancies relating to leased property
include the following:
a. Fixed-term tenancy (tenancy for years)—Tenancy for a period of time stated by express
contract.
b. Periodic tenancy—Tenancy for a period determined by the frequency of rent payments. It is
automatically renewed unless proper notice is given.
c. Tenancy at will—Tenancy for as long as both parties agree. No notice of termination is required.
d. Tenancy at sufferance—Possession of land without legal right.
5. Nonpossessory interest—An interest that involves the right to use real property but not to possess
it. Easements, profits, and licenses are nonpossessory interests.
(Continues )
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UNIT SEVEN: Property and Its Protection
Transfer of Ownership
1. By sales contract—A contract for the sale of land includes the purchase price, the type of deed
the buyer will receive, the condition of the premises, and any items that will be included. It is often
contingent on the buyer’s ability to obtain financing and on certain events, such as satisfactory
inspections.
2. By deed—When real property is sold or transferred as a gift, title to the property is conveyed by
means of a deed. A deed must meet specific legal requirements. A warranty deed provides the most
extensive protection against defects of title. A quitclaim deed conveys to the grantee only whatever interest the grantor had in the property. A deed may be recorded in the manner prescribed by
recording statutes in the appropriate jurisdiction to give third parties notice of the owner’s interest.
3. By will or inheritance—If the owner dies after having made a valid will, the land passes as specified
in the will. If the owner dies without having made a will, the heirs inherit according to state inheritance statutes.
4. By adverse possession—When a person possesses the property of another for a statutory period of
time (ten years is the most common), that person acquires title to the property, provided the possession is actual and exclusive, open and visible, continuous and peaceable, and hostile and adverse
(without the permission of the owner).
5. By eminent domain—The government can take land for public use, with just compensation, when
the public interest requires the taking.
Landlord-Tenant
Relationships
The landlord-tenant relationship is created by a lease agreement. State or local laws may dictate
whether the lease must be in writing and what lease terms are permissible.
1. Rights and duties—The rights and duties of landlords and tenants that arise under a lease agreement generally pertain to the following areas:
a. Possession—The tenant has an exclusive right to possess the leased premises. Under the
covenant of quiet enjoyment, the landlord promises that during the lease term, neither
the landlord nor anyone having superior title to the property will disturb the tenant’s use and
enjoyment of the property.
b. Use of the premises—Unless the parties agree otherwise, the tenant may make any legal use of
the property.
c. Maintenance of the premises—The tenant is responsible for any damage that he or she causes. The
landlord must comply with laws that set specific standards for the maintenance of real property and
must maintain residential premises in a habitable condition (safe and suitable for human life).
d. Rent—The tenant must pay the rent as long as the lease is in force, unless the tenant justifiably
refuses to occupy the property or withholds the rent because of the landlord’s failure to maintain
the premises properly.
2. Transferring rights to leased property—
a. If the landlord transfers complete title to the leased property, the tenant becomes the tenant of
the new owner. The new owner may collect the rent but must abide by the existing lease.
b. Generally, in the absence of an agreement to the contrary, tenants may assign their rights (but
not their duties) under a lease contract to a third person. Tenants may also sublease leased
property to a third person, but the original tenant is not relieved of any obligations to the landlord
under the lease. In either situation, the landlord’s consent may be required, but statutes may
prohibit the landlord from unreasonably withholding consent.
Issue Spotters
1. 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 Transfer of Ownership.)
2. 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 Landlord-Tenant Relationships.)
—Check your answers to the Issue Spotters against the answers provided in Appendix D at the end of this text.
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