Property Rights: Acquisition & Possession

Key Definitions

• Acquisition of Property Rights: Requires physical control and intent to appropriate for one's own use.
• Res Nullius: Property of no one, free for anyone to take, applies when an animal regains its natural liberty.
• Non-Native Animals: Courts consider whether the finder could reasonably believe the animal was unowned, factors include size, species, markings, and location.
• Animus Revertendi: Animals that habitually return, the original captor retains property rights.
• Constructive Possession: Possession has the same legal effect as actual possession, even if not physically held, courts ask if the "constructive possessor" could allege a property interest sufficient to protect the object/animal in an action.
• Rationi Soli: Landowner prevails when capture occurs on their land, applies even if the owner is unaware of the property's existence.
• Mortal Wound + Pursuit: A wound objectively likely to be fatal will deprive the animal of its natural liberty, subjectively indicates a manifest intention to seize the animal.
• Custom: A use or practice adopted by acquiescence, having the force of law.

Custom Considerations

• Application is limited to the industry and those working in it.
• The custom is recognized by the whole industry.
• It requires in the first taker the only act of appropriation that is possible.
• The custom is necessary for the survival of the industry.
• It works well in practice.
• Must consider how custom effects society as a whole, not just the relevant industry.

Adverse Possession

• A legal process to gain (or lose) title to real or personal property.
• An adverse possessor gains a limited interest even before the statute of limitations runs.
• They can eject other trespassers and adverse possessors if they entered the property first.

Adverse Possession - Definitions

• Ejectment: A legal action to remove a trespasser.
• Statute of Limitations: The number of years an adverse possessor must use the property.
• Color of Title: Claim of ownership based on a written document that is defective.
• Actual Possession: Physically occupying and using the property, demonstrating control and ownership.
• Hostile: Without the true owner's permission.
• Tacking: Adding time from a previous adverse possessor to the current one's time.

Common Law Elements of Adverse Possession

• In order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence, that for the statutory period ‘his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.
• Open and notorious.
• Exclusive.
• Hostile or adverse.
• Continuous.
• For Statutory Period.
• In addition, some courts add other elements, by common law or by statute, including the following:
  • Claim of title or claim of right.
  • Good faith or bad faith.
  • Improvement, cultivation, or enclosure.
  • Payment of property taxes.

Open and Notorious

• The possessor must "fly his flag" so an average owner would see someone claiming rights to the property.
• The use must be visible and apparent enough to give notice to the true owner, if they checked their land.
• Digging sand and gravel, granting and denying access to others, bringing trespass actions, and paying taxes for 24 years are all acts of ownership.
• Acts should be appropriate for the type of property.
• Actual occupation, cultivation, or residence are unnecessary if the property is unsuitable for permanent improvements.
• Actual notice to the true owner satisfies this element, even if no one else knows of the adverse claim.

Exclusive Possession

• The adverse possessor holds the land to the exclusion of the true owner, acts as the owner of the land would.
• Possession cannot be exclusive if multiple possessors use the property adversely to each other, unless there is clear evidence of joint or collective adverse possession.
• An adverse possessor with a "superior legal right" can eject other adverse possessors and continue possession, the statutory period runs from the first possessor's initial occupancy.
• Generally, the first adverse possessor may eject subsequent adverse possessors, even if they have not occupied the property for the full statutory period.

Claim of Right

• Three positions exist in legal doctrine:
  • State of mind is irrelevant.
  • "I thought I owned it" (good faith).
  • "I thought I did not own it [and intended to take it]" (aggressive).
• Group 1 (Majority): Objective Requirements adds nothing beyond objective requirements.
  • Requires the possessor to act as an owner would, without a specific mental element.
  • Focuses on objective manifestations of ownership rather than subjective intent.
• Group 2: Good Faith Belief in Ownership Requires that the adverse possessor genuinely believe they have a right to the property.
  • Aims to reward honest mistakes but reduces the number of successful adverse possession claims.
• Group 3: Intentional Act to Acquire Property Not Owned Requires the possessor to knowingly attempt to acquire property they don't own.
  • Incentivizes putting property to productive use, regardless of moral considerations.

Adverse or "Hostile" Possession

• The possessor must not hold subserviently to the owner of the property, the owner must not have given permission to use the property.
• Courts generally apply a presumption of hostility.

Continuous Possession

• Possession must be maintained throughout the statutory period.
• Seasonal or intermittent use may be sufficient if it is similar to how an ordinary owner would use the property.
• An interruption caused by the owner's reentry or government acquisition may require starting a new statutory period.
• Abandonment by the adverse possessor starts the statute of limitations anew if a second adverse possessor enters independently.
• An intrusion by a third party does not defeat continuity if the adverse possessor regains possession.
• The standard of conduct depends on the character of the land.
  • Seasonal use is acceptable for property suited for seasonal use.
  • The purpose is to provide notice to the true owner of the adverse claim.
• Acts should be appropriate for the type of property.
• Digging sand and gravel, granting and denying access to others, bringing trespass actions, and paying taxes for 24 years are all acts of ownership.
• Actual occupation, cultivation, or residence are unnecessary if the property is unsuitable for permanent improvements.

Privity and Tacking

• An adverse possessor may sell or give their limited interest to another person.
• Tacking adds the time the first adverse possessor used the property to the time the second possessor used the property.
• Privity, necessary for tacking, occurs by contract of sale, gift, will, or intestate succession.

Estates and Interests

• Definition of "estate": Right to possession of property, present or future.
• Six common law estates:
  • Three freehold estates: fee simple, fee tail (now disappeared), and life estate.
  • Three non-freehold estates: estate for years, periodic tenancy, and tenancy at will.
• Present interest/estate: Right to present possession.
• Future interest/estate: Right to future possession (still legally protectable).

Estates: Fundamental Fragments of Time

• A property is devisable if the owner can transfer ownership by will (testamentary transfer).
• Property is descendible or inheritable if it can pass by the state's intestacy statute to heirs without a will.
• Property is alienable, assignable, or transferable if the owner can sell or give it away during their lifetime (inter vivos transfer).
• Fragmentation of ownership interests over time is the basic concept underlying present and future interests.

Fee Simple Absolute

• Complete ownership lasting until the end of time.
• The owner can enjoy, sell, gift, or devise the property, if there is no will it passes to their descendants.
• All future persons who can use or possess the property must get their rights from or through the fee simple absolute owner.
• Transferability:
  • Alienable (transferrable or assignable).
  • Devisable.
  • Descendible (inheritable).
• A person transferring property today is deemed to transfer the entire interest unless otherwise indicated.

Words of Purchase and Limitation

• Traditional language: "to A and his heirs."
• Words of purchase, such as "to A," denote who takes the estate.
• Words of limitation, such as "and his heirs," indicate the estate lasts in perpetuity (fee simple absolute).
• A's heirs get nothing from this transfer; only A gets the property.

Life Estate

• The owner owns the property for life.
• O transfers to A for life, remainder to B: A has a present interest (life estate), B has a future interest (vested remainder in fee simple absolute).
• If O grants A a life estate without stipulating what happens after A dies, the property reverts to O: A has a present interest (life estate), O has a future interest (reversion in fee simple absolute).
• The life estate holder may use the property and collect rents and profits.
• Transferability: It is alienable inter vivos (transferrable during life) for the duration of the original life tenant's life.

Words of Purchase and Limitation - Life Estate

• No mandatory words, but "to A for life" is common.
• If the grant to the life tenant does not stipulate who takes the property upon the tenant's death, the original grantor (or his estate) takes possession.
• The grantor's future interest is a reversion.
• A transferor may provide that a third party will take the property after the life estate ends; this is a remainder.
• A remainder is a future interest in a third party that "remains" after the interest and estates prior to it end naturally.
• While a life estate is frequently measured by the life tenant's life, it can be measured by the grantor's life or by the life of a third party.

Life Estate pur autre vie

• A life estate measured by the life of a third person (X).
• A person owning a life estate pure autre vie may transfer or assign the life estate to another party during his life.
• Because the life estate continues as long as the other person lives, the life estate pur autre vie may be devisable (by will) and descendible (inheritable) (in no will).
• The life estate pur autre vie ends on the death of the person who is the measuring life.

Six Common Law Estates - Freehold Estates

• Possession of a freehold estate is denoted by seisin.
• Fee simple estates is Forever/infinity.
• Fee tail (now disappeared) Until original grantee’s lineage dies out.
• Life estate is For the life of the grantee.

Non-Freehold Estates

• A less complete form of ownership than a freehold estate.
• Estate for years is a fixed period measured in years, months or days.
• Periodic tenancy.
• A person may hold each of the estates as present interest or as a future interest. Hence, a person may own a present interest in a life estate, or a future interest in a life estate. The same is true for the other estates.

Example - Estates

• Olivia deeded Blackacre to Adam for his life, then to Barbara for her life, then to Carla and her heirs.
• Adam owns a present interest in Blackacre, held in a life estate.
• Barbara owns a future interest in Blackacre, held in a life estate, she must wait for Adam to die before she takes possession.
• Carla owns a future interest, a vested remainder held in fee simple absolute.

Fee Tail

• The fee included a series of life estates.
• The ending of the grantee’s bloodline is called failure of issue.
• Transferability: Fee tails, like life estates, are not devisable or generally inheritable because the property passes from one generation to the next under terms of the feel tail grant.

Fee Tail - Origins and Purpose

• To protect property from "dreaded son-in-law".
• Ensuring property remains for future generations of grantor's blood relatives.
• It is based on family protection motive, especially for blood relatives.

Fee Tail - Creation and Operation

• Magic words: "O conveys Blackacre to A and the heirs of his body".
• Grantee gets property for life.
• On grantee's death, passes to lineal descendants of grantor.
• Passes down generation after generation to lineal heirs.

Lineals vs. Collaterals

• Lineals: Parent-child relationship between generations (great-grandfather to grandfather to father to child).
• Collaterals: Share a common ancestor but no parent-child relationship (siblings, cousins).

Historical Primogeniture System

• One heir per generation: Oldest surviving male child.
• Women and younger sons were excluded.
• The modern approach includes all lineal descendants.

Defeasible Fee Simple Estates

• Courts look to the language of the grant, if there is no language of condition or limitation is included, the grant is of a fee simple absolute.

Fee Simple Determinable

• An estate that would be a fee simple absolute but automatically ends upon the happening of an event or nonevent.
• While both have potentially infinite or perpetual duration, the fee simple determinable terminates automatically if the condition occurs.
• The chance that the property might return to the grantor if the condition subsequent happened is called the possibility of reverter.
• A fee simple determinable is a present possessory estate followed by a possibility of reverter in the grantor.
• Sometimes the possibility of reverter is expressed in the deed or will, if not expressed it will be implied.
• Examples: "to A and her heirs as long as the property is used for church purposes," or "to A and his heirs unless liquor is sold on the property," or "to A and his heirs as long as the land is used for school".
• Created by language" "to A and his heirs so long as..." (or "as long as," "during," "while," “unless,” "until")
• What remains with the grantor is possibility of reverter, there is an automatic termination when the condition is violated.
• Property automatically reverts to original grantor without court action.
• The adverse possession statute of limitations starts running against the holder of a possibility of reverter on the day the condition subsequent happens.

Fee Simple Subject to Condition Subsequent

• May hold the property forever, but could lose it entirely if the condition subsequent occurs.
• A fee simple determinable ends automatically, whereas the grantor of a fee simple subject to a condition subsequent must assert their right of entry.
• Until the owner exercises the right of entry, the holder of the fee simple subject to condition subsequent continues to own the property.
• The only person who can retake the property on the event of the condition subsequent is the grantor or his heirs.
• Aaron transferred Blackacre “to Britney; provided, however, if Britney sells alcohol on Blackacre, then Aaron may reenter and retake the land.” Britney owns a fee simple subject to a condition subsequent in Blackacre, and Aaron owns a right of entry.
• Created by language: "to A and his heirs, but if [condition], then O may reenter" “provided that,” “but if,” “on the condition that,” or “provided, however.”
• Right of reentry/right of entry remains with grantor.
• It is not automatic, and the grantor must assert the right.
• Action is required to terminate the estate.
• Adverse Possession: Since the owner of a fee simple subject to a condition subsequent continues owning the property even if the designated event occurs, the adverse possession limitations period does not begin to run until the holder of the right of entry exercises that right.

Fee Simple Subject to an Executory Limitation

• The grantee holds a fee simple estate, but if a condition happens, the fee simple automatically vests in a named third party.
• Until the condition happens, the named third party’s interest is called an executory interest or an executory limitation.
• Luann transferred Blackacre “to Britney as long as Britney does not sell alcohol on Blackacre, then to Carl and his heirs.” Britney’s estate is a fee simple subject to an executory limitation, and Carl’s future interest is an executory interest.
• Either “so long as” or “but if” language may be used, its distinguishing characteristic is that, on forfeiture, the estate passes to a third party.
• If the condition occurs, the estate passes automatically to the third party.
• Note the implications for Adverse Possession

Critique of Distinctions

• All three options lead to functionally equivalent outcomes with arbitrary differences
• The same real-world condition can create different legal results
• E.g. Liability for slip and fall differs depending on which estate was created
• The distinction creates a "trap for the unwary".

Future Interests Retained by the Grantor or Transferor

• A transferor’s (or his heirs or assigns) future interest (currently owned interest that becomes possessory at a future date) will have one of the three labels , reversion, possibility of reverter, or right of entry.
• The reversion is retained when a transferor transfers an interest less than the one they own to another.
• It follows a life estate, fee tail, or term of years that end naturally.
• The diversion differs from the Possibility of reverter and the right of entry in that the reversion does not depend on the occurrence of a condition precedent.
• The possibility of reverter is a future interest held by a transferor who transfers a fee simple determinable.
• The right of entry is the grantor’s future interest that follows the fe simple subject to a condition subsequent.
• Once classified, a future interest in the grantor thereafter retains the same name through owners change, if the transferor dies or assigns his future interest to.a third party, the name of the future interest remains the same.

Future Interests in Third-Parties

• The interests can be divided into vested remainders, contingent remainders, and executory interests.
• A reversion if retained by a grantor is called a remainder if granted to a third party in the same document creating a life estate, fee tail, or term of years.

Remainder

• A future interest in a third party that “remains” after the interests and estates prior to it end naturally, the remainder must be created in the same instrument of transfer — either a will, deed, or other document.
• To be a remainder, the future interest in the third party must become possessory immediately on the natural termination of the prior estate.

Executory Interest

• A future interest in a third party (not the transferor) that takes effect only when the preceding interest is divested or cut short by a condition subsequent.
• The executory interest typically follows an interest held in some type of defeasible fee simple.
• An executory interest is an interest following a defeasible fee if the property passes to a third party instead of to the grantor , the fee simple divested in favor of the third party is called a fee simple subject to an executory limitation
• Because they cut short a prior estate and thus do not follow a natural termination of the prior estate, executory interests are always contingent interests

Vested and Contingent Remainders

• When conditions are attached to remainder interests, more labels come into play.
• Remainders can be either vested or contingent, they are mutually exclusive.
• A vested remainder is one that (a) is owned by an ascertained person or persons and (b) is not subject to a condition precedent.
• A contingent remainder is one where either the owner is un-ascertained or the right to the current or future possession of the property is subject to a condition precedent (a contingency).
• A person is ascertained if he or she can be specifically determined at the time a transfer or devise is effective.
• Distinguishing between vested and contingent interests becomes critical only with regard to remainders and executory interests — i.e., future interests in third parties.
• A remainder is a vested in interest if there is no unfulfilled condition precedent attached to the interest, but does not vest in possession until the life estate terminates.
• Vest means that we know the identity of the person who will hold the remainder, even if their interest does not become possessory at that time (because for that, the life tenant must die).
• A remainder that is subject to no conditions is called an indefeasibly vested remainder.
• A condition (which is something that might or might not happen) may be either precedent or subsequent.
• A condition precedent is something that has to happen before someone gets an interest.
• If the condition happens, the remainder vests and if the condition precedent never happens, the contingent remainder never vests and the holder will never be entitled to possession.
• A condition subsequent is something that, if it happens, will take away the remainder and the interest will either return to the grantor or pass to someone else and is called a remainder subject to complete divestment.
• If the conditions becomes impossible while the life tenant is still alive, the remainder becomes an indefeasibly vested remainder.

The Landlord-Tenant Relationship

• Historical approach: Property law framework, lease viewed as conveyance of estate in land.
• Modern approach: Contract law framework emphasizes mutuality of obligations and is dominant in residential context.
• There is a divergence based on lease type with residential leases following a contract approach and commercial leases being covered by a traditional property approach
• Residential tenants are freed from many waste obligations.

The Leasehold Estates

• There are four common-law leasehold estates, or tenancies:
  • Estate for Years - fixed duration, terminates automatically, expressly created, and may need to be in writing.
  • Periodic Tenancy - continuous and automatically rolls over from period to period. May be created expressly, but most are created by implication. Care must be taken in giving notice to terminate a periodic tenancy.
• Estate at Will - Either party can terminate the arrangement at will.
• Estate at Sufferance - a way to describe the wrongful possession of land by a tenant who improperly holds over at the end of his lease. The estate at sufferance is a valuable fiction for the landlord since she has a choice to treat the holdover tenant as a trespasser subject to eviction or as a tenant for a new valid tenancy who must pay rent.

Conveyance or Contract?

• Courts and legislatures have distinguished between residential and commercial leases, residential tenants are given special recognition in disputes with landlords.
• There is an assumption that a landlord has greater economic power and skill than the residential tenant, commercial lease is typically viewed as a free market transaction between parties with equal bargaining power and skill
• Courts may also make a direct attack on lease provisions and refuse to enforce them because they are unconscionable or violate public policy.

Superseding the Bargaining Process Factors Include:

• A party’s relative lack of bargaining power or sophistication.
• No meaningful alternatives due to standardized lease provisions, or a shortage of alternative housing.
• Terms that are unreasonably favorable to the other party. A lease may also be voided because it violates public policy.

Achieving Habitable Premises - Evictions

When a landlord and tenant enter into a lease, the landlord promises that neither she nor anyone else claiming through her will interfere with the tenant’s lawful possession — this promise, applied in all leases, is called the covenant of quiet enjoyment.

• A landlord’s actually or constructively evicting a tenant absolves the tenant of his obligations under the lease, including duty to pay rent.

Definition of Promise, Applied to All Leases, and Arising from the Words of a Lease.

• Implied into every lease.
• Protects tenant's possession against disturbance.
• By landlord or persons claiming under landlord.

Actual Eviction

• The landlord's total actual eviction of the tenant from the leased premises occurs when the landlord excludes or locks the tenant out of the premises.

Constructive Eviction

• Occurs when the landlord substantially interferes with the tenant's access, use, and enjoyment, or causes or allows conditions that are tantamount to an actual eviction.
• Blackett constructive eviction: the landlord must perform some act with intent of depriving the tenant of the enjoyment and occupation of the whole or part of the leased premises.
• When, because of a landlord’s acts or failure to act when the landlord has a duty to act, the leased premises are rendered unfit for habitation, in whole or in substantial part, the tenant may elect to vacate after giving the landlord notice of the condition and reasonable opportunity to cure.

Elements of Constructive Eviction

• Intentional (actual or inferred) acts or failure to act by the landlord (who has notice or knowledge of the problem) that breach a duty owed to the tenant.
• That substantially interferes with the tenant’s enjoyment of the premises, or render the premises unfit for the purpose for which it was leased.
• Then the tenant vacates the premises within a reasonable time after the landlord’s actions.
• With these elements, the tenant is relieved from the obligation to pay rent.

Duty to Protect the Tenant’s Quiet Enjoyment: Constructive Eviction

• The doctrine of constructive eviction is based on the landlord’s breach of the covenant of quiet enjoyment, both parties can contract for quiet enjoyment.

Covenant of quiet enjoyment example

• Blackett vs. Olanoff - basic facts, holding, supreme court of Massachusetts had reasoning the landlords had the ability to control the noise conditions but introduced the commercial activity into a residential area.
• The landlord entered into a lease with one tenant which the landlord knew permitted that tenant to engage in activity which would interfere with the rights of another tenant.
• The court noted that the landlords had promised to correct the situation but were ultimately unsuccessful, leading to the tenants' constructive eviction.

Important note on Nonfeasance vs malfeasance.

• The landlords' conduct or failed conduct in permitting the lounge to operate as it did naturally and probably resulted in the tenants' loss of enjoyment of their premises.
• Landlord’s conduct, not intention, is controlling.

Implied V. Express

• Parties can contract for quiet enjoyment — Express covenant takes precedence over implied covenant provided by operation of law.

Wesson v. Leone Enterprises, Inc.

• This case there was an the abandonment of the common-law rule of independent covenants in commercial leases in favor of the modern rule of mutually dependant covenants.
• The act must have some permanence of character. The landlord’s conduct, not his subjective intention that is controlling.

Independent vs. Dependant Covenant’s

• Traditional View states that covenant’s were historically independent.

Modern View: Dependant Covenants

• Today you have a the view of lease as a contract rather than just conveyance of property.
• Today we see covenants are treated as mutually dependent, and if landlord fails to perform obligation, tenant may be excused from performance.

Javins v. First National Realty Corp.

• Addresses whether housing code violations which arise during the term of the lease have any effect upon the tenant’s obligation to pay rent.
• Since lessees continue to pay the same rent, they were entitled to expect that the landlord would continue to keep the premises in their beginning condition during the lease term. It is such expectations that the law recognizes as deserving of formal, legal protection.

Basis for Implied Warranty of Habitability in Javins

• Contract Theory, unequal bargaining power, policy considerations, and housing regulations/codes.

Housing Code Approach (DC Model)

• Housing regulations imply warranty of habitability.
• The court in Javins explicitly rejected the independent covenant approach
• Javins is cited as establishing that the warranty of habitability could not be waived.

Landlord’s Tort Liability

• Areas under control of landlord: The landlord is liable for injuries in areas under his control where the injury arises from a failure to use reasonable care to keep the area reasonably safe, involves injuries in common areas, such as a hallway or a staircase.
• Latent defects: Where a landlord is aware of the existence of a hazardous condition in the premises that could not be discovered by the tenant in a reasonable inspection, the landlord is liable for injuries caused by the condition if the landlord does not disclose the problem.

Tort Liability - Negligent Considerations

• Negligent performance of a repair: If a landlord makes a repair to the premises, voluntarily or pursuant to a contractual obligation, he will be liable for injuries arising from negligent repair.
• Public use exception: Where it is contemplated that the tenant will admit members of the public to the leased premises, the landlord is liable for injuries to third parties caused by dangerous conditions if the landlord knew or reasonably could have known of the condition and the landlord failed to repair the problem.
• Breach of statutory duty: Courts have differed significantly; the courts generally held that the landlord’s duty extends not only to the tenant but also to persons on the property with the consent of the tenant.

Landlord’s Liability for Acts of Criminals

• Kline v. 1500 Massachusetts Avenue Apartment Corp., (1970) held that the landlord was liable to the tenant based upoin requirement that a standard of “reasonable care in all the circumstances.”
• In some situations, landlords have been held liable for tenant-on-tenant harassment that violates civil rights law. Landlord is responsible if landlord has actual notice, rather than constructive notice, of the problem.

Tenant’s Duties and Landlord’s Remedies

• Duty to preserve the Premises

Marbar, Inc., v. Katz (2000)

• If the tenant has breached a substantial obligation of her tenancy by effecting unauthorized alterations to the premises, and the breach can no longer be cured by restoring the premises to its original condition, the question arises whether the court must permit the eviction to go forward or may it instead fashion an appropriate cure ensuring that the landlord’s property interests are fully protected while preserving a long-term regulated tenancy.
• A tenant may not make extensive and significant alterations without the consent of the landlord.
• If the removed fixtures or appliances can be reinstalled, tenants may cure the breach.
• If significant alterations occur after a tenant has given notice of defective conditions and the landlord is unable or unwilling to make needed repairs, forfeiture of the tenancy is not required.
• Similarly, where a landlord fails timely to object to or participates in the alterations, application of waiver or estoppel precludes forfeiture of the tenancy.
• Certain alterations, although done for purely aesthetic reasons, or to replace old appliances, and which do not alter the character of the premises, or cause injury to the reversion, do not warrant forfeiture of the tenancy.

Duty to Operate

• Presence of Percentage Rent Clause: Key indicator of implied covenant of continuous operation.
• Shopping Center Context: Symbiotic relationship between shopping center and individual tenants.
• Drafting: Express provisions preferable to relying on implied terms.

Covid-19, Impossibility, and Force Majeure

• Common law doctrines such as “force majeure" (French for "superior force") is a clause that excuses parties from fulfilling their contractual obligations when an extraordinary event beyond their control prevents performance, such as a natural disaster or war.
• Tenant's failure not entirely due to governmental restrictions, and the tenant chose not to explore takeout/delivery options.

Force Majeure drafting tips

• Future force majeure clauses may need to address the total vs. partial business interruption, specific pandemic language, and allocation of risk for rent during business interruptions.

Rent Controls - Generalizations

• Older rent control didn't permit increases but modern provisions provide for a "fair rate of return" on the property.
• Some regimes allow extra increases when a new tenant moves in, while other jurisdictions provide for the decontrol of a unit when it becomes vacant.
• Given the incentive for landlords to replace old tenants with new ones, the statues typically give the tenant a right to renew the lease perpetually unless the tenant is in substantial breach.
• Tenants may be evicted only for cause, and legislation may limit conversions of rental buildings to condominiums or other withdrawals from the rental market.

Rent Control and the Theory of Efficient Regulation (1998)

• Reduced returns mean reduced investments, so that rent control statutes only exacerbate the housing shortages they are said to alleviate.
• Instead of competitive markets making the decision, the law must necessarily introduce political formulas whereby the majority of voters within the jurisdiction, subject only to loose constitutional rate of return constraints, determine the formula for allowable increases.
• Preservation of one’s home is a stronger claim than preservation of one’s business, or that noncommercial personal use of an apartment as a home is morally entitled to more weight than purely commercial landlording.