Property is all about Title

By Beatrice Jackson,2014-07-10 19:14
22 views 0
Property is all about Title ...

    Property is all about Title. Title is:


    ? Discovery/Capture

    ? Both chattel & real property can be “discovered”

    ? First in time, first in right

    ? Property can be acquired by possession and use.

    ? Real Property Johnson v M’Intosh, (3) upheld theory that the use must be modern “commercial” use –

    western technological use. Merely living on the land without improving it or utilizing it in commerce does

    not constitute "labor." Ouch.

    ? Chattel:

    ? Must have seizure - prior to seizure (physical control over movement, constructive possession,)

    "discoverer" has not put sufficient labor into the property to control it by merely chasing the fox.

    Pierson v Post (19)

    ? Killing something consists of control. Ghen v. Rich (26)

? Policy reasoning allowing ownership through discovery/capture of previously unowned property.

    ? Locke‟s theory – Labor must be the property of the laborer.

    ? Promotion of saleable title within economic system.

? Lost items Does the finder own the item or does the property owner where the item was found

    ? Anything attached to the land is the property of the landowner. Elwes v. Briggs (qouted in Hannah v. Peel,


    ? However something undeliberately placed on the land becomes property of finder. Broach dropped into

    window embrasure property of finder. Hannah v. Peel (103)

    ? Anything deliberately placed on the land belongs to the landowner. Pocketbook placed on counter & left

    belongs to shopkeeper. McAvoy v. Medina (110)

    ? Is there policy to support "owner" of lost property that most helps true owner to find lost property?

    ? Creation: Intellectual property Cheney Bros. v. Doris Silk (60)

    ? Outside the patent system, most intellectual property is not protected. Courts let congress handle it whenever


    ? News is protected outside the patent/copyright system is protected as it is economically necessary to protect

    that, but infeasible to file for copyright.

    ? Adverse possession

? Visible & Notorious

    ? Notorious is difficult to prove for small encroachments Mantillo v. Gorski (138 steps on house)

    ? With chattel, notorious is also difficult. Statute of limitations begins when the true owner discovers or should

    discover through due diligence the current possessor of the property. O'Keefe v. Snyder (153)

? Actual exclusive possession for the statutory period

    ? 10-20 years for real property

    ? 20 years under common law & MD law (C&JP ?5-102). 10 in New York. Van Valkenberg v Lutz (120)

    ? 3 years for chattel MD C&JP ?5-101)

    ? Statute begins to run when the true owner does or should through due diligence discover the possessor.

    O'Keefe v. Snyder (153)

    ? Disability action must be filed for someone disabled at the time the action accrues, the lesser of three years

    or the full period of limitations after the disability is removed. If the original statute has more than three years

    left on it, the original time frame is preserved. (C&JP 5-201)

    ? Possessor must use the property in the normal fashion. Van Valkenberg v Lutz (120 Brooklyn house)

    ? A joint owner cannot begin the statutory period without an "ouster" - preventing other joint tenants from entry

    onto the property. Basically requires notification to begin statute of limitations.

? Continuous use

    ? Possession does not always have to be continuous if continuous possession is not the normal way a true

    owner would use the property. Howard v Kunto (143 WA beach houses)

    ? One may “tack” the previous possessor‟s time on where there was color of title passed through a good faith

    transaction. Howard v Kunto (143)

? Claim or right, good faith possession or hostile intent sometimes required.

    ? Court asks why reward the thief rather than the honestly mistaken for hostile intent requirement.

    ? However, possession with permission is not "adverse"

? Policy

    ? To keep the land in commerce presumably the true owner is not using the land.

    ? To reward those using the land in a way beneficial to the community.

    ? If someone fails to enforce their own property right for twenty years, why should society?

    ? Gift

? Elements of a Gift

    ? Intent of donor

    ? Delivery

    ? Makes the transaction "real" to giftor

    ? May be Manual, Constructive or Symbolic

    ? Symbolic/constructive delivery could consist of delivery of deed, letter of gift, keys, etc.

    ? Symbolic/constructive delivery of keys to a dresser does not constitute gift of items inside dresser that

    would not "normally" be found inside a dresser. Newman v. Bost (170)

    ? Acceptance is usually assumed

? Inter Vivos

    ? Of chattel

    ? Lesser proof is required

    ? May gift a future interest Gruen v. Gruen (178)

    ? Letter stating gift constitutes constructive delivery of a gift of a future interest Gruen v. Gruen (178)

    ? Of Land

    ? Requires intent,

    ? Constructive delivery of a deed in writing, which is executed and notarized (of transfers of more than one

    year - Statute of Frauds.) MD RP ?5-101

    ? acceptance

? Causa Mortis

    ? Frequently conflicts with a standing will

    ? Requires more proof, as courts want to uphold the will system

    ? If donee is already in possession of the property, there must be redelivery

    ? Sale

? Used to require seisin for real property. Now requires a deed. A deed must have

    ? Names of grantor & grantee

    ? Description of property

    ? Execution, acknowledgement & recordation.

? Statutory Estoppel

    ? UCC ?2-403

    1. A purchaser of goods acquires all title to which his transferor had or had power to transfer except that a

    purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with

    voidable title has power to transfer good title to a good faith purchaser for value. When goods have been

    delivered under a transaction of purchase the purchaser has such power even though

    a. The transferor was deceived as to the identity of the purchaser or

    b. the delivery was in exchange for a check which was later dishonored or

    c. it was agreed that the transaction was to be a "cash sale" or

    d. the delivery was procured through fraud punishable as larcenous under the criminal law

    2. Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to

    transfer all rights of the entruster to a buyer in the ordinary course of business

    3. "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any

    condition expressed between the parties to the delivery or acquiescence and regardless of whether the

    procurement of the entrusting or the possessor's disposition of the goods have been such as to be

    larcenous under the criminal law.

    ? Equitable Estoppel

    ? One party induces action in another through some wrongdoing is estopped from action against the second

    party in regards to that action.

    ? Even though an owner had "entrusted" something to a dealer in kind, he is not estopped as that entrusting is

    not a wrongful act. Porter v. Wertz (supplemental)

    ? Will

? Anyone may make a will who is 18 or older MD E&T ?4-101

    ? Will must be in writing, signed by testator or representative at testator's direction, and two witnesses MD E&T


    ? Witnesses do not need to know they are witnessing a will. Casson v. Swogell (supplemental)

? Anyone in the armed services may make a will w/o witnesses if in testator's handwriting and testator is outside of

    US. Such will only valid for one year after discharge. MD E&T ?4-103

    ? Wills made outside MD and valid under that state's law are recognized in MD. MD E&T ? 4-104

    ? Intestacy

Spouse Minor Child among Issue Parents Grandparents Great-Stepchildren None issue Grandparents Entire Estate (none exist) (none exist) - - - - 1/2 Estate All children split - - - - estate Per Stirpes $15K + 1/2 (none exist) 1/2 Remainder Per - - - - Remainder Stirpes $15K + 1/2 (none exist) (none exist) 1/2 Remainder Per - - - Remainder Stirpes (None) (none exist) Distributed Per - - - - Stirpes (None) (none exist) (none exist) Divided Per Stirpes - - - (siblings inherit) (None) (none exist) (none exist) (none exist) Divided Per Stirpes - - (Cousins inherit) (None) (none exist) (none exist) (none exist) (none exist) Divided Per Stirpes - (None) (none exist) (none exist) (none exist) (none exist) (none exist) Divided per stirpes among survivors & those with surviving issue (None) (none exist) (none exist) (none exist) (none exist) (none exist) (none exist) Escheat to Dept. of Health or School Board

    ? MD law of intestacy MD E&T ?3-102 (p. 64) ? Spouse's Share

    ? If there is a minor child, spouse inherits 1/2 estate.

    ? Issue but no minor children, spouse inherits $15,000 + 1/2 remainder.

    ? No issue, surviving parents, spouse inherits $15,000 + 1/2 remainder.

    ? No surviving issue or parents, spouse inherits whole estate.

    ? After spouse's share, net estate divided to issue equally per stirpes. (Per stirpes defined MD E&T ?1-210)

    ? No surviving issue, residue distributed per stirpes to MD E&T ?3-104

    ? Parents and their issue

    ? Grandparents and their issue

    ? Great-grandparents and their issue

    ? Surviving stepchildren and non-surviving stepchildren with surviving issue. ? Escheats to MD Medical Assistance if decedent was under their care, otherwise to local schoolboard MD E&T

    ?3-105 ? Courts don’t like to find intestate succession, will construe a will to apply. MD E&T ?4-402 ? Only dead people have heirs - you don't know who they are until the person dies. Title Is Divisible

    ? Fee Simple

? Initially only allowed to pass through primogeniture. After the Statute of Frauds and the Statute of Wills, the Fee

    Simple was divisible and could pass to whoever owner wished to grant to.

? Presumption is that a transference passes a fee simple unless implication or explicit language shows different

    intent. MD RP ?2-101

    ? Fee Tail

    ? Invented to require primogeniture transfer of property - "entails" property ? O

     --|-- A and his eldest male heir ?, reversion in O gg

    ? MD possessor of a fee tail may grant the land in fee simple. MD RP ?2-201

    ? This means that possessor must grant title during their lifetime to someone outside the tail.

    ? Possessor may still NOT will the property outside the tail.

    ? Abolition of fee tail makes land more alienable.

    ? Some states assume that fee tail creates life estate in possessor with remainder to eldest male issue.

    ? Others assume fee simple in possessor

    ? Third category states that grantor takes possession back if possessor dies without surviving issue, not a

? Life Estate

    ? Must be explicitly or implicitly created by clear intent in grantor's language.

    ? "to have my home to live in and not be sold" creates fee simple in grantee with an illegal restraint on


    ? If intent is unclear and creation of life estate leaves remainder to pass through intestate succession, this

    violates presumption that will is intended to dispose of all interests, current or future.

    ? Transferor of life estate can only pass remainder of the life estate

    ? This makes the property difficult to sell, lease, mortgage, etc.

    ? The implicit restraint on alienation is why courts will construe fee simple wherever possible

    ? Creates a "reversion" in grantor.

? Fee Simple Defeasable

? Determinable

    ? Ends automatically

    ? Requires language of durational aspect - "So long as" "while" "until" "only" "whenever"

    ? Creates "possibility of reverter" in grantor

? On condition subsequent

    ? Requires re-entry by reversionary interest

    ? Requires conditional language - "but if" "on the condition" "provided that"

    ? Creates "right of re-entry" in grantor

? Promissory restraint on use

    ? Does not create any ownership in grantor if restraint is violated.

    ? Only injunction & damages may be recovered

    ? "Hope and desire" "it being agreed that" etc.

? MD limits defeasable estates MD RP ?6-101, ?6-102

    ? Rights of re-entry and possibilities of reverter created prior to 7/1/1899 must be recorded by 7/1/1972

    ? Rights created between 7/1/1899 and 6/30/1969 must be recorded between 70 and 73 years after creation

    ? After initial recordation, old rights must be re-recorded every 27 to 30 years

    ? New rights may not last longer than thirty years

    ? Action for re-entry or repossession under possibility of reverter must commence later of 7 years after event or

    7/1/1976 for rights created prior to 7/1/1969.

    ? Possession after defeasing event is always considered hostile and cannot be considered permissive for

    adverse possession statute of limitation.

? Restraint on alienation

    ? Possessor of the defeasable estate may not be able to sell the land - "used for church purposes only" "used

    for school purposes only" are OK, but specific language forbidding sale creates a fee simple in the possessor.

    ? May be able to enforce promissory restraint on alienation if that restraint is "reasonable" Macy v. Hecht's and

    will be able to enforce restraint on alienation for chattel.

? Waste

? Current tenant is entitled to use of the property as long as that does not damage interests of future tenancy.

    ? What about investment for current income vs. growth?

? If court has to partition or sell during life estate, shares are determined by annuity factors.

? Remainders

    Type of Triggering Event Definite? Owner Saleable? Notes Interest

    Reversion End of designated period Yes Grantor Yes Usually the remainder of a life estate or term of years.

    Possibility End of a determinable fee No Grantor Yes Can shorten transferee’s estate

    of reverter simple

    Right of End of fee simple on No Grantor Yes Entry condition subsequent

    Vested Transfer to defined person or Yes Transferee Yes “Defined person” only requires one of multiple be alive Remainder people on definite event at time of grant. Remainder becomes vested subject

    to open or vested subject to partial divestment if

    contingent remaindermen could possibly appear later.

    Contingent Transfer to undefined person No Transferee No “Heir” is an undefined person, as no one has heirs Remainder or on contingent event. until they die. However, “issue” is defined if the

    people in particular have at least one kid. Alternative

    transferees dependant on an event occurring creates

    an alternative contingent remainder.

    Executory Spring or Shifting No Transferee Somebody else has to receive a future interest before Interest this type takes place.

    ? Future interest retained in grantor

    ? Types

    ? Reversion

    ? Possibility of Reverter

    ? Right of Re-Entry

    ? None are restrained by Rule against Perpetuities

    ? All are alienable in MD. MD RP ?6-104

    ? Future interests created in grantee

    ? Remainder

    ? Vested

    ? Never a divesting interest - always takes effect as a matter of law when previous estate ends.

    ? Must know who taker is and that taker must take possession upon an event that will always occur.

    ? Contingent

    ? Prior estate terminates and another condition must also be met. Otherwise title reverts to grantor or

    executory interest.

    ? Generally destruct and revert to grantor where condition has not been met at end of prior estate: O --

    |-- A for life --|-- B if she is 21 ?: If B is not 21 at A's death, O takes a reversion and B has no interest.

    ? Contingent remainders are indestructible in MD MD E&T ?11-101:

    O --|-- A for life --|-- B if she is 21 ? - B has an executory interest and takes title away from O at

    attainment of 21.

    ? Why? Court generally construes things as contingent remainders rather than executory interests

    because contingent remainders are destructible and thus there is a likelihood of creating a

    marketable fee simple sooner. Intent of grantor? Why mess around with the reversion &

    springing interest?

    ? Alternate contingent remainders: "To A for life, then to B and her heirs if B survives A, and if B does

    not survive A to C and his heirs." Comma placement is important, as commas surround an entire

    estate grant. This is alternate rather than having executory interests, as it places a condition on B's

    inheritance. Without a condition in the grant to B, C has an executory interest…

    ? Executory Interest

    ? Springing

    ? Divests the grantor of his/her remainder.

    ? To A for life, and if B survives A, then to B and her heirs" A has life estate, O has reversion, B has

    springing executory interest.

    ? Shifting

    ? Divests a transferee.

    ? "to A for life, then to B and her heirs, but if B does not survive A, to C and his heirs." A has life estate,

    B has vested remainder subject do divestment, C has shifting executory interest.

    ? Executory interests are not destructible

    ? Shelley's rule (abolished)

    ? Life estate with remainder to "heirs" should really create fee simple in A due to merger, as heirs are

    undetermined until death & remainder is technically created in A.

    ? However, it was abolished to uphold grantor's intent.

    ? Worthier Title

    ? "To A for life and then to my heirs" actually creates a reversion in grantor rather than contingent

    remainder (as heirs are indeterminate at time of grant.)

    ? Except when the court determines that intent of grantor was to pass to heirs rather than through the estate &


    ? Merger - If any current estate & future estate are held by the same person, that person holds fee simple

    regardless of any contingent events that the future estate is dependant on - makes the land more marketable

    and gets it out of the future estate system.

? Trusts

? Protect assets from creditors

    ? Trust is allowed to require payments only be made to beneficiary. (spendthrift trusts)

    ? Creditor has all rights of beneficiary to access assets. If beneficiary has the right to invade the principle, so

    does the creditor.

? Allows control of use of assets after death of grantor.

    ? Trustee owns assets in legal title.

    ? Must manage prudently and pay out according to trust document.

? Rule against Perpetuities

? Interests that might vest later than "end of all lives in being plus 21 years" are not valid.

    ? Maryland states that RAP destroys all interests that do not vest within lives in being + 21. Therefore MD RAP

    doesn't end up destroying any future interests until the end of lives in being + 21… MD E&T ?11-103

    ? MD also re-writes any grants that say "upon attainment of [an age greater than 21]" to say "upon attainment of

    age 21"

? Rule against perpetuities does not apply to future interests retained by grantor

? How to figure it out:

    ? Identify all future interests created

    ? Identify all beneficiaries

    ? Can use specific contingent beneficiaries but not indeterminate ones as validating lives.

    ? "To A's child B if he attains 25," B is a validating life

    ? "To any of A's children who attain 25," even though A's child B is alive at time of grant, his life cannot

    be sued.

    ? Apply rule to each interest.

? Exceptions MD E&T 11-102

    ? Cemetery care grants of less than $5K

    ? Transfer to charitable corporation on contingency

    ? Qualified Plans

    ? Charitable Trusts

    ? MD trusts that state they are exempt from RAP and institutional trustee holds only securities.

? Concurrent Estates

Tenancy Creation lang. Shares Life Xfer Partition Death Creditors

    In To A & B Equal unless Yes RP 14-107 court Xferable Can partition or

    Common specified otherwise auctions & splits $ take interest

    Joint To A & B as joint T Equal (usually) Creates TIC in all Yes if one requests No Yes

    according to 4 rules previous JT’s By To A & B as T by the Equal Divorce or sale -> TIC Yes if both request. No No

    Entirety Entirety, if married. with OK of both

? Tenants in Common

    ? MD presumes Tennancy in common - MD RP ?2-117

? Joint Tenants

    ? Four Unities

    ? Time (Interests must vest at the same time)

    ? Title (Must acquire title through same instrument)

    ? However, where grantor and one joint tenant are the same person, MD does not require a "strawman"

    to take intermediate title. MD RP ?4-108

    ? Can destroy tenancy in common by transferring share of joint tenancy to self.

    ? Interest (Must have equal interest)

    ? Possession (Each must be able to posses the whole)

    ? Must be created by explicit language, otherwise MD RP ?2-117 construes tenancy in common.

    ? What severs a joint tenancy to create tenancy in common?

    ? Murder or simultaneous death

    ? Mortgage by one cotenant. (Only in a state, like MD, that considers mortgage to transfer title) Harms v.

    Sprague (332)

    ? Lease by only one cotenant.

    ? Lien severs joint tenancy only after a writ of execution has been granted by the court. Judgement &

    docketting does not sever the tenancy.

    ? Survivorship feature passes outside of probate.

    ? Intangibles frequently held in joint tenancy:

    ? Bank accounts (have three types, MD FI ?1-204, Boehm v. Harrington, supplemental)

    ? True joint tenancy, survivorship feature intended

    ? Payable on death, but no rights of withdrawal intended

    ? Trust account - rights of withdrawal/power of attorney intended but not survivorship feature. Where

    there is a confidential relationship between parties, burden of proof is on joint tenant to prove intent of

    deceased that survivorship feature was also intended.

    ? Stock Certificates

    ? Bonds

    ? Warehouse receipts

    ? Lottery Tickets

    ? Insurance Policies

    ? Safe deposit boxes

    ? May be constrained by gift requirements.

    ? Court is stringent enforcing gifting rules on contents of the boxes

    ? Tenants by the Entirety

    ? Joint tenants who also happen to be married

    ? MD will probably assume tenancy by entirety if the deed fulfils all requirements but doesn't state tenancy


    ? Prevents creditors from collecting on independent debts.

    ? Division of responsibility of cotenants

    ? Sharing of expenses

    ? Taxes, mortgage payments - annual ownership expenses.

    ? Not responsible for improvements, however in partition, improver may recover increase in property value

    due to those improvements. (owelty)

    ? Accounting

    ? Each cotenant is entitled to share of "fair market value" rent if there was an ouster, share of actual rent

    where land is rented to third party.

    ? Not required to share non-rental profit derived from one tenant's labor on the land.

    ? An occupying cotenant is liable to rent to another if they deny other cotenants right of entry & use. MD RP


    ? Destruction of concurrent estates.

    ? Partition by court Delfino v. Valencis - garbage business case (341)

    ? In kind is preferable

    ? By judicial sale

    ? Where it will better promote the interests of both parties

    ? Where physical attributes do not allow division in kind.

    ? Parties may agree contractually not to allow partition, but this may or may not be a reasonable promissory

    restraint on alienation.

    ? Ouster

    ? Begins statute of limitations for adverse possession:

    ? Declaration of hostile intent

    ? Sale of property under color of sole ownership title

    ? Treating the land as though it was owned singly.

    ? Makes one tenant liable for rent to another

    ? Any of above

    ? Denial of one tenant's right of entry

    Leasehold Estates

    ? Term of Years

? Ends by operation of law at end of fixed period

    ? Particular number of days, months or years.

    ? “fixed period” could be life of either tenant or landlord.

? May be defeasible due to some event;

    ? Like use for specific purpose,

    ? Or until tenant gives notice. Lease term “until tenant terminates at time of his own choice” held to be term of

    years, not terminable by landlord. Garner v. Gerrish (421)

    ? Landlord really keeps a “reversion” under the estates theory.

? Landlord gives tenant “right of quiet enjoyment” in exchange for reasonable rent. These are only “implied”

    common law rights of each party.

    ? Any other agreements were independent if someone breached, either party had to sue for injunction.

    ? Periodic Tenancy

? Tenancy for fixed period that renews automatically unless terminated.

    ? Notice to terminate due lesser of 6 months or one lease period prior to termination.

    ? Termination requirement frequently modified by statute.

? Entrance under oral lease contract plus monthly payment of rent creates monthly periodic tenancy in most states,

    barring statute of frauds requiring lease of >1 year in writing & <1 year oral leases.

    ? MD RP ?5-101 Oral leases >1 year are tenancies at will.

    ? MD RP ?5-102 Oral leases <1 year are allowed, & are periodic tenancies.

    ? Tenancy at Will

? Terminable by either landlord or tenant at any time.

    ? Terminates due to death of either party or by their declaration

    ? No permission or common law notice required

? Preference

    ? If period of time is indeterminate, lease defaults to tenancy at will.

    ? “life of tenant or until he decides to leave” is not indeterminate Garner v. Gerrish (421)

    ? Tenancy at Sufferance. Where a tenant doesn‟t move out after the lease ends

    ? Landlord must make irrevocable election to treat lease as renewing or tenant as trespasser

    ? If Landlord elects not to renew the lease, it is landlord‟s duty to file for eviction. Failure to file does not default

    to renewal of lease.

    ? If landlord subsequently cashes a month-to-month check, he is consenting to a month-to-month situation.

    (Crehchale & Polles, Inc. v. Smith)

? Maximum length of "automatic" renewal is 1 year.

    ? Responsibility of holdover tenant to landlord.

    ? MD RP ?8-402: Holdover tenant is liable for damages, subject to eviction. Acceptance of payment prior to

    filing for eviction does not waive landlords right to evict. Holdover tenancy accepted by landlord creates a

    month-to-month tenancy unless original periodic tenancy was shorter.

    ? Responsibility of landlord to subsequent tenant:

    ? If previous tenant is “holding over,” new tenant has responsibility to evict court is unwilling to imply contract

    between landlord & new tenant that premises will be vacant, only to enforce tenant‟s right of possession

    granted by lease.

    ? Tenant arrived to find previous tenant had not vacated. No lease clause promising premises vacant,

    statute allowing tenant to evict trespasser. Hannan v. Dusch (459)

    ? Conveyancing principle, American Rule: Lease purely conveys right of enjoyment & entry to lessor.

    Unless lease specifies that land will be empty, there is no duty on landlord. Landlord transfers good

    title to tenant for a term of years, nonwithstanding any trespassers. Note this is more efficient as

    there is only one lawsuit (against the trespasser, the wrongdoer.)

    ? Contract theory, English Rule: Lease contract promises to deliver “a place to live,” if there‟s a

    trespasser, there is no delivery by landlord. Therefore tenant is under no obligation to pay & may

    hold landlord responsible for breach & eviction of trespasser. Note that under this rule, an implied

    condition “that land will be empty” is read into the contract by the court.

    ? Either rule is purely a “default rule” – only applies when lease is silent on issue of holdovers.

    ? In Maryland

    ? No implied warranty in the land, however “implied covenant by lessor that lessee shall quietly enjoy

    the land.” MD RP ?2-115

    ? Implied covenant that landlord will cause residential premises to be vacated prior to new tenant

    moving in. MD RP ?8-204

    ? Tenant may get abatement of rent,

    ? May terminate lease & get refund of security deposit & prepaid rent if tenant notifies in writing

    prior to delivery of premises,

    ? May receive consequential damages if no new residence is found.

    ? Landlord must evict previous tenant.

    ? MD RP ?8-208(d)(2). Tenant may not waive rights given under law. Can the landlord? MD RP ?8-208(a)(2)

    under the old version of the statute.

    ? Subleasing

    ? Normally permitted unless specifically restricted

    ? May be restricted to “only by approval by landowner.” Kendall v. Ernest Pestana, Inc. (473) ? Approval must be withheld only for reasonable commercial/business reasons

    ? Promissory restraint on alienation only allowable when restraint is reasonable

    ? Restatement 2nd upholds this rule Landlord‟s consent cannot be withheld unreasonably ?15.2(2)

    ? Contractual duty of good faith bargaining, restriction on mid-term modifications.

    ? Reasonableness factors:

    ? Financial responsibility of proposed lessee

    ? Suitability of the use proposed for the property

    ? Legality of that use

    ? Necessity of alterations of the premises

    ? Nature of the occupancy

    ? Personal taste, convenience or sensibility is not reasonable

    ? Landlord may now charge a higher rent is not reasonable.

    ? Landlord may be able to rent a different property to proposed sublessor is not reasonable ? Vs. Approval may be withheld for any reason whatsoever. (Traditional contracts view tenant may freely

    bargain away his rights.)

    ? Can be prohibited by lease provision. (Contractual modification)

Report this document

For any questions or suggestions please email