Legal Environment for a New Century

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Legal Environment for a New Century Quotes of the Day “It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away.” Anthony Trollope, English author “The manner of giving is worth more than the gift.” Pierre Corneille, French playwright

Legal Environment for a New Century Nature of Real Property  The grantor is the conveyor of property; the grantee is the one receiving it.  Real property includes: Land Buildings Subsurface Rights Air Rights Plant Life Fixtures --an object considered to be a permanent part of the property.

Legal Environment for a New Century Estates in Real Property  Rights in real estate usage and ownership vary from unrestricted use and right to sell, to a lesser right of usage, but not the right to transfer it.  The rights that someone can hold are called estates, or interests.

Legal Environment for a New Century Freehold Estates  The owner of a freehold estate has the present right to possess the property and to use it in any lawful way.  A fee simple absolute provides the owner with the greatest control.  A fee simple defeasible may terminate upon the occurrence of some event.  A life estate is an estate for the life of some named person.

Legal Environment for a New Century Concurrent Estates  A concurrent estate is when two or more own property at the same time. Tenancy in Common – two or more people own the property, each with the right to convey her interests or to pass it down to her heirs. A joint tenancy includes the right of survivorship  All co-tenants have an absolute right to partition (division of property).

Legal Environment for a New Century Nonpossessory Interests  An easement gives one person the right to enter land belonging to another and make a limited use of it, without taking anything away. An easement can be created when the landowner expressly grants it, when he implies it (such as in granting permission to access an area accessible only by crossing your land), or by necessity (when there is no other way to reach the property.)

Legal Environment for a New Century Nonpossessory Interests  A profit gives one person the right to enter land belonging to another and take something away.  A license given the holder temporary permission to enter upon another’s property.  A mortgage is a security interest in real property, given to the institution loaning a buyer the money to buy the real estate.

Legal Environment for a New Century Sale of Real Property  Seller’s Obligation Concerning Property Most states now impose an implied warranty of habitability on a builder who sells a new home. The seller of a home must disclose facts that a buyer does not know and cannot readily observe, if they materially affect the property’s value.

Legal Environment for a New Century Sale of Real Property  A contract for sale of real property must be in writing and must include names, description of property, price and signatures.  Before the sale is complete, someone must do a title search – to ensure there are no other claims on this property.  When all arrangements are made, the parties are ready for closing – a meeting where the deed is signed over to the new owner.  The deed must then be recorded – filed with the official state registry.

Legal Environment for a New Century Land Use Regulation  Zoning State laws that permit local communities to regulate building and land use. An owner or builder may seek a variance – permission to build something that does not fit the zoning laws.  Eminent Domain Eminent domain is the power of the government to take (at a fair price) private property for public use.

Legal Environment for a New Century Landlord-Tenant Law  When an owner of a freehold estate allows another person temporary, exclusive possession of the property, the parties have created a landlord-tenant relationship.  Three legal areas are combined An interest in real property is conveyed. A lease is a contract. Negligence law may be involved also.

Legal Environment for a New Century Lease  The statute of frauds generally requires that a lease be in writing.  Some short-term oral contracts may be enforceable, but a written contract is clearer and safer.  A written contract usually includes covenants (promises) from the landlord and the tenant; these details are determined by the parties.

Legal Environment for a New Century Types of Tenancy  Any lease for a stated, fixed period is a tenancy for years.  A periodic tenancy is created for a fixed period and then automatically continues for additional periods until either party notifies the other of termination.  A tenancy at will has no fixed duration and may be terminated by either party.  A tenancy at sufferance occurs when a tenant remains on the premises, against the wishes of the landlord, after the expiration of a true tenancy.

Legal Environment for a New Century Landlord’s Duties  The landlord’s first important duty is to deliver possession. In most states the landlord must remove a previous tenant if he does not leave willingly. Some states allow the new tenant to either evict the old tenant, or collect rent from her.

Legal Environment for a New Century Quiet Enjoyment  All tenants are entitled to the right to use the property without the interference of the landlord.  Actual Eviction If a landlord prevents the tenant from possessing the premises, he has actually evicted her.  Constructive Eviction If a landlord substantially interferes with the tenant’s use and enjoyment of the premises, he has constructively evicted her.

Legal Environment for a New Century Duty to Maintain Premises  A landlord has a duty to deliver the premises in a habitable condition and to maintain a habitable condition.  Building codes may require stricter than normal standards for rental property.  Implied Warranty of Habitability The implied warranty of habitability requires that a landlord meet all standards set by the local building code, or that the premises be fit for human habitation.

Legal Environment for a New Century Tenant Remedies for Defective Conditions  Rent abatement – a court ordered reduction in rent owed.  Rent Withholding – the tenant refuses to pay part or all of the rent, in proportion to the defective conditions.  Repair and Deduct – the tenant may, in some cases, have the repair made and deduct the cost from the rent.  Suit for Damages – in some cases, the tenant may file suit against the landlord.

Legal Environment for a New Century Duty to Return Security Deposit  The landlord must return a security deposit within 30 days after a tenant vacates.  If any of the deposit is withheld to pay for damage, a written accounting of the damage is required.  If the landlord fails to comply, the tenant is entitled to double or triple the deposit amount.

Legal Environment for a New Century Tenant’s Duties  Duty to Pay Rent – this is the tenant’s foremost obligation.  Landlord’s Remedies for Nonpayment of Rent: Apply security deposit to rent. Sue tenant for non-payment. Evict tenant.

Legal Environment for a New Century More Duties and Remedies  Duty to Use Premises for Proper Purposes  Duty Not to Damage Premises A tenant is liable to the landlord for any significant damage he causes to the property.

Legal Environment for a New Century Injuries  Tenant’s Liability A tenant is generally liable for injuries occurring within the leased premises.  Landlord’s Liability The landlord is generally liable for injuries occurring in common areas (such as a sidewalk) where the tenant has no control. Common law holds the landlord liable for latent defects and negligent repairs. A landlord can sometimes be held liable for a crime committed on the property.

Legal Environment for a New Century Personal Property  Personal property means all property other than real property.  Most personal property is goods, meaning something that can be moved.

Legal Environment for a New Century Gifts  A gift is a voluntary transfer of personal property from one person to another without any consideration.  A gift involves three elements: The donor intends to transfer ownership of the property to the donee immediately. The donor delivers the property to the donee. The donee accepts the property.

Legal Environment for a New Century Delivery  Physical Delivery – method usually used to deliver the gift.  Constructive Delivery -- made by transferring ownership without a physical delivery.  Delivery to the donee’s agent is a valid gift; delivery to the donor’s agent is not.

Legal Environment for a New Century Inter Vivos & Causa Mortis  An inter vivos gift – is a gift given during life and with no expectation of death. The gift is valid, if it meets the basic conditions of a gift.  A gift causa mortis – is a gift given in expectation of dying soon. The gift is valid, if it meets the conditions of a gift, and the giver dies as expected. The giver may rescind the gift at any time, and it is automatically rescinded if the giver does not die as expected.

Legal Environment for a New Century Bailment  A bailment is the rightful possession of goods by one who is not the owner.  The parties generally-but not always-create a bailment by agreement.  A bailment without agreement is called a constructive, or involuntary, bailment.  To create a bailment, the bailee must assume physical control with intent to possess.

Legal Environment for a New Century Rights & Duties of the Bailee  Anyone who interferes with the bailee’s rightful possession is liable to her.  The bailee is typically, though not always, permitted to use the property.  The bailee is strictly liable to redeliver the goods on time to the bailor or to whomever the bailor designates.  The bailee must exercise due care.

Legal Environment for a New Century Due care  The level of care required depends upon who receives the benefits of the bailment. Extraordinary care of the property is required when the bailment is for the sole benefit of the bailee (as when a neighbor borrows your tractor.) Ordinary care is required in the case of mutual benefit (renting a car at a cost.) Slight care is all that is required when only the bailor benefits. The bailee is liable for loss only in gross negligence.

Legal Environment for a New Century Burden of Proof  Once the bailor has proven the existence of a bailment and loss or harm to the goods, a presumptive of negligence arises, and the burden shifts to the bailee to prove adequate care.

Legal Environment for a New Century Rights and Duties of Bailor  The bailor is entitled to the return of his property as agreed upon.  Liability for Defects If the bailment is for the sole benefit of the bailee, the bailor must notify the bailee of any known defects. In a mutual-benefit bailment, the bailor is liable not only for known defects but also for unknown defects that the bailor could have discovered with reasonable diligence.

Legal Environment for a New Century “Real property is ancient in origin and terminology, but every bit as potent as it was 1,000 years ago.”