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Interests in Land

Possessory Interests
A. Freehold Estates
1. The Fee Simple Absolute 2. The Defeasible Fees (a) The Fee Simple Determinable (b) The Fee Simple Subject to a Condition Subsequent

B. Non-Freehold Estates
1. The Estate for Years

3. 4.

The Tenancy at Will

The Periodic Tenancy The Tenancy at Sufferance

3. The Fee Simple Conditional

4. The Fee Tail 5. The Life Estate

Non-Possessory Interests
1. Easement
2. Profit 3. License

Donald J. Weidner

Historically, leasehold estates have involved
aspects of real property and aspects of personal property.

Leases are traditionally treated as conveyances of estates in land While, on the other hand, being considered personal property chattels real.
On the death of a tenant, the leasehold interest would pass as personal property rather than as real property
2 Donald J. Weidner

Non-Freehold Estates (contd)

Consider questions involving leaseholds
through the lens of conveyance and through the lens of contract

When any of the leasehold estates is created, a future interest necessarily arises, either in the landlord or in a third party.
If the landlord retains the right to possession at the end of the lease term, the future interest is a reversion. If a third party takes possession at the end of the lease term, the future interest is generally a remainder.
3 Donald J. Weidner


An estate for years specifies a definite, ascertainable time for beginning and for termination
A term for years is created even if the fixed period is far less than a year.

Hypo: A leases to B from November 18, 2004 until January 30, 2005.
Fixed beginning and fixed ending. An estate for years (term for years) is created.

So long as a gross period is stated, an estate for years is created even though it is subject to earlier termination.
Garner v. Gerrish states: Leases providing for termination upon the occurrence of a specified event prior to the completion of an otherwise fixed term, are routinely enforced even when the event is within the control of the lessee.
4 Donald J. Weidner


Term for years expires automatically upon the termination of the stated period
In the absence of a provision in the lease, no notice of any kind need be given, either by the landlord or by the tenant, to terminate the lease at the end of the term.

Statute of frauds: (typically) provides that a lease for a term in excess of one year must be in writing to be enforceable. Unlike the typical conveyance of a fee, a term for years is a conveyance that involves a continuing relationship between the grantor (lessor) and the grantee (lessee).
Consider, at the extreme, a shopping center lease.

Donald J. Weidner

The basic concept is that a tenancy at will is neither for a fixed period nor for a series of periods; in its purest form, it continues only so long as both lessor and lessee want it to. If a lease provides that one party can terminate it at will, there is significant authority that says that, as a matter of law, it can also be terminated at the will of the other party (if a tenancy at will has been created).
For more, see Garner v. Gerrish

However, a unilateral power to terminate a lease can be grafted on to a term of years or a periodic tenancy without making it a tenancy at will.
Ex. L leases to T for 10 years or until L sooner terminates
creates a term of years determinable.

Donald J. Weidner

Tenancy At Will Into Periodic Tenancy

Usually, an estate at will is not created directly by conveyance
It tends to arise by implication whenever T takes possession of Os land with Os implied consent.

Modern statutes typically require a period of notice say 30 days or a time period equal to the interval between rent paymentsin order for one party or the other to terminate a tenancy at will.
The effect of such statutes is to turn the estate at will into something very like the estate from period to period.

It also ends at the death of one of the parties. If, under a tenancy for no fixed period, rent is reserved or paid periodically, a periodic tenancy, rather than a tenancy at willarises by implication in most jurisdictions .
7 Donald J. Weidner

A periodic tenancy is a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or the tenant gives the requisite notice of termination.
Periodic tenancies can arise expressly or by implication. Ex. LL to T from month to month.

If the proper notice to terminate is not given, the period is automatically extended for another period. At common law, a tenancy from year to year required six months notice to terminate
Ex. If T is a year-to-year tenant beginning January 1, 2004, L must receive notice of termination before July 1, 2004 or be held over to another termthrough December 31, 2005. A tenancy for a lesser period required a notice equal to the length of the period, but not greater than six months.

Donald J. Weidner


The notice had to be given so as to terminate the estate at the end of a period and not in the middle of it.
Thus, if a month-to-month tenant who began her tenancy on January 1st gave notice to terminate on March 20th, the earliest termination date would be April 30th. In many states, statutes have shortened the length of notice required to terminate periodic tenancies and have permitted month-to month tenancies to be terminated at any time following 30 days notice.
9 Donald J. Weidner

Periodic Tenancy (contd)

Hypo: O leases to A for 18 months in a jurisdiction that has a Statute of Frauds requiring all leases in excess of one year to be in writing.
This lease is voidable for failure to comply with the statute of frauds. If A enters under this voidable lease, A will not be a trespasser So long as A pays no rent, A will probably be treated as a tenant at will. If A tenders the first months rent, however, and O accepts it, this will probably convert the tenancy into one from month to month
In which event A can continue until either party elects to terminate by proper notice.
10 Donald J. Weidner

The tenant at sufferance does not have any estate in land, but because some writers have listed an estate at sufferance as one of the non-freeholds we should mention it here to complete the pattern. This wispy interest arises only in the case of a holdover tenant.
More later.


Donald J. Weidner

On October 1, L leases Whiteacre to T for one year beginning October 1.
The following September 30, T moves out without giving L any notice. What are Ls rights?

On October 1, L leases Whiteacre to T from year to year, beginning October 1.

The following September 30, T moves out without giving L any notice. What are Ls rights?


Donald J. Weidner

On October 1, L leases Whiteacre to T at an annual rental of $2,400, payable $200 per month on the first of each month.
No fixed term is mentioned, so not a term for years. Periodic tenancy and for what period? Some rent reserved vs. others rent paid If year-to-year
6 months notice required to terminate at common law Many states have statutes that shorten the length of time to terminate a periodic tenancy

If month-to-month
1 month notice is required to end the tenancy at the final day of a period Some statutes permit a month-to-month tenancy to be ended at any time after 30 days notice (even in the middle of a period)
13 Donald J. Weidner

PROBLEMS at 447 (Contd)

T, a month-to-month tenant, notifies L on Nov. 16, 1992, that she will vacate on Nov. 30, 1992.
T vacates on Nov. 30, 1992 and pays no further rent to L. L, after reasonable efforts, relets beginning April 1, 1993. What result if L sues T for rent from Dec.March.


Donald J. Weidner

Ending a Tenancy at Will

Despite statutes requiring notice to end a tenancy at will, some states still say that a tenancy at will ends:
On the death of either party; On a conveyance by the LL; or On a purported assignment (but not a sublease) by a T.


Donald J. Weidner

Garner v. Gerrish
In 1977, Fee Owner (a natural person) owned a house. Fee Owner executed a Lease on a printed form.
Fee Owner filled in the blanks on the form. Specifying $100 per month rent. The term was stated to begin on May 1, 1977 and
[W]hich term will end Lou Gerrish [T] has the privilege of termination [sic.] this agreement at a date of his own choice. To the standard reference to the LLs right of reentry if the rent is not timely paid was added: Lou has thirty days grace for payment.

Fee Owner died in November, 1981. Executor of Fee Owners estate (Garner) gave T (Gerrish) notice to quit
Which T ignored

Executor filed a summary eviction proceeding

16 Donald J. Weidner

Garner v. Gerrish (contd)

What interest was initially conveyed to T?
Was it a term for years? Was it a tenancy at will? Was it a periodic tenancy? Was it a life estate?
Determinable at the will of the life tenant?

New York Court of Appeals states: [T]he parties concede that the agreement creates a lease.


Donald J. Weidner

Garner v. Gerrish (contd)

LL argues that this is a tenancy at will and that, at common law, the further rule was:
a lease at the will of the lessee must also be a lease at the will of the lessor.

Court criticizes the common law rule.

Does it comport with the language of the agreement? Does it effect the intent of the parties? What was the reason for the rule?
A life estate could not be created without livery of seisin. To allow a mere writing to create a tenancy that would continue indefinitely at the sole will of the tenant would permit, in effect, the creation of a life estate without livery of seisin.


Donald J. Weidner

Garner v. Gerrish (contd)

Can you think of any other reason for the rule?
as a mandatory rule? as a constructional preference?

What if T has transferred his interest to Developer?

Does Developer get a life estate pur autre vie? Or, does Developer get something else (or nothing)?
Court refers to a personal right to . . . terminate. Court also states: The fact that it may be terminated at some earlier point, if the named tenant desires to quit the premises, does not render it indeterminate.
19 Donald J. Weidner


Part of the question in Garner is whether the definitions of leaseholds embody mandatory rules. That is, must a leasehold fall into one of three categories:
Term for years, if not, then Periodic tenancy, if not, then Tenancy at will.
See also Philpot v. Field, enforcing a perpetual right to lease.

Garner saves the day, at least insofar as it enforces an objective manifestation of intent,
Does it say that this is an enforceable leasehold? Does it say this is an enforceable life estate?
20 Donald J. Weidner

1. L leases Orangeacre to T for as many years as L desires. What estate does T have?
Term for years? Tenancy at will?
Some: could have a tenancy at the will of a T only [thus making it similar to a determinable life estate] But virtually all said: A tenancy, stated to be at the will of the LL only, was necessarily also at the will of the T.
Would you abandon that rule? Could it be unconscionable?


Does T have a life estate pur autre vie (LLs)? Does T have a determinable fee?

What if there is periodic rent paid?

Determinable term for years? Determinable periodic tenancy?
21 Donald J. Weidner

For rent payments of $500 a month, LL leases Greenacre to T for the duration of the War. 1. First Approach. Ask the following questions in order:
Is it a term for years? (if no, then) Is it a periodic tenancy? (if no, then) Is it a tenancy at will?
Kalis asked the questions in this order and concluded a tenancy at will had been created and allowed LL to evict T.

Problems at 450

2. Second Approach: Asks the questions in the following order:

Is it a tenancy at will? Is it at periodic? Is it term for years?
Hawkins said term for years: the purpose of the requirement of a fixed ending date is satisfied when one can tell from an external factor when the term ends.
22 Donald J. Weidner

Problems at 450 (contd)

Note the problems with the Hawkins approach of finding a term for years:

As term for years is generally understood, the ending date can be determined ex ante It proves too much to say that a definite end date can be determined ex post
For example, that would convert life estates into terms for years. If A conveys to be until B dies, B will always eventually die.

3. Third Approach: Philpot v. Field

Involved a lease to T for a term of 20 years and so long thereafter as T used the premises for particular purposes. When intent is clear, enforce the agreement as written.
23 Donald J. Weidner

The Tenancy at Sufferance: Holdovers

The so-called tenancy at sufferance arises when a T remains in possession (holds over) after termination of a tenancy. Common law rules give the LL two basic options:
1. Evict the HO (and get damages); or 2. Consent (express or implied) to the creation of a new tenancy
Generally considered a periodic tenancy, either
1. the length of the original period, or 2. the way the rent was reserved,

But in either case not longer than one year.

Some states have changed these rules.

Crechale & Polles, Inc. v. Smith considers some of the complications that can arise.
24 Donald J. Weidner

Crechale & Polles, Inc. v. Smith

2/5/64 LL
5 year lease @ $1,250/month to end on 2/6/69



Ts new bldg. is not ready. Dispute about who said what in negotiations between LL&T. LL writes to T: You have no oral extension:

1. 2.

quit and vacate at midnight, per lease. You are subject to payment of double rent for any holdover.

Held: this letter was an effective election to terminate the lease and to treat the Ts as trespassers.

3/3/69 4/6/69


Pays rent for 1 month by check, which LL deposits. Pays rent for next month by check, stating final payment, but LL refuses to cash this check.


*GENERAL RULE: a TY from year to year is created by the Ts holding over after the expiration of a term for years and the continued payment of the rent reservedBy remaininga T gives the LL the option of treating him as a trespasser or as a tenant for another year. (Some say rent payment period: month-to-month).

MISS. STATUTE: Authorized double rent for the 25 period of the holdover.

Donald J. Weidner



Tendered the premises for purposes of LLs inventory T [presumably after vacating] LLs lawyer writes, electing to renew for a new 5-year T term [2 months after the expiration of the lease]



4/19/69 LL

[A Year Passes]
5/15/70 LL

Pay past due rent or vacate.

5/27/70 LL

Tendered the keys.

The LL in Crechale had an additional option, a statutory option, that the court did not mention but that was reflected in his letter: Mississippi statute gave the LL the option to sue the HO for double rent for the period of the holding over. Indeed, 10 years later the Mississippi Supreme Court held that the statutory remedy was intended to pre-empt the CL remedy. Note: there was no legal basis for the claim of a new 5-year term. Note: the CL MD is FRV of the leased premises, with the rent reserved in the original lease as good evidence of FRV.
26 Donald J. Weidner

Crechale & Polles, Inc. v. Smith (contd)

Consider the Courts statement:
We are of the opinion that once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-tomonth basis, but fails to pursue his remedy of ejecting the tenant, and accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-tomonth basis.


Donald J. Weidner

BARN LOCKOUT CASE (Welk v. Bidwell)

The plaintiff owned a farm with a tobacco barn. The defendant had a farm across the highway and also sold both new and used farm equipment. On January 1st, the defendant rented plaintiffs entire barn on a month-to-month basis for $10 per month and used it for storing farm machinery, tools, and other inventory. Plaintiff, at the beginning of a month, more precisely, on May 1st, told the defendant that he should either remove his property from the barn or thereafter pay $125 per month rent.
28 Donald J. Weidner

Welk v. Bidwell (contd)

The tenant did not remove his property but stayed on, and kept tendering to the landlord $10 per month rent, which tenders of rent were refused. The tenant had his locks on the barn, but then the landlord put his own locks on the barn. The landlord strung a cable across the driveway so that vehicular access to the barn was cut off. The tenant, nevertheless, kept coming in by crawling through an opening in the barn and getting needed smaller parts.
29 Donald J. Weidner

Welk v. Bidwell (contd)

Is the tenant is liable for the increase in rent?
It depends. On the question whether a landlord by giving notice to his tenant before the expiration of the term of the lease that if the latter continues in possession of the leased property after the expiration of this term he must pay an increased rent, may obligate the tenant to do so even though the tenant refuses to acquiesce in the increase, there is a sharp conflict in the authorities. (About half of the jurisdictions that have decided the question say yes, the other half say no.)


Donald J. Weidner

Welk v. Bidwell (contd)

The crux of the matter lies in the fact that a lease is a contract. In the case of a rental on a month-to-month basis, the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month. For each month, therefore, there must be a new contract of leasing. Where there has been no meeting of the minds, there is no contract. Connecticut statute provided: No holding over by any lessee after the expiration of the term of his lease, shall be evidence of any agreement for a further lease.


Donald J. Weidner

Welk v. Bidwell (contd)

Some say: a tenant has no right to occupy the property except upon the terms fixed by the landlord and if those terms are not acceptable the tenant is free to vacate. Others respond: where . . . provision is made for the ousting of a tenant by summary process on the expiration of a lease, the landlord is as free to oust the tenant as the tenant is to vacate, if the terms upon which the tenant proposes to hold over are not acceptable to the landlord.


Donald J. Weidner

Welk v. Bidwell (contd)

The tenant claimed damage caused to the items he stored in the barn by a leaky roof.
Was there a duty to repair? The court said the landlord had no duty to repair unless he agreed to repair.

The tenant also argued that he had been constructively evicted by the LL
Such that his obligation to pay rent ended as a matter of law


Donald J. Weidner

Welk v. Bidwell (contd)

The result: the tenant was held to be a tenant at sufferance and
was not obligated to pay $125 a month, not obligated to pay $10 a month, but was obligated to pay a reasonable rental value for the barn.

The next question became, was this obligation to pay reasonable rental value suspended by constructive eviction?
The Court held that there was no constructive eviction because the tenant did not abandon the property within a reasonable time.

May the tenant recover damages caused to the property stored in the barn because of the leaky roof?
Held, there was no covenant by the landlord to keep the shed in repair. The Court also noted that, even if the blockage was wrongful, there was no cause or connection between that blockage and the damage to the goods.
34 Donald J. Weidner

Leases: Form versus Substance

What is in form a lease may be held, in substance, to be something other than a lease.
Conversely, something not in form a lease can be held to be, in substance, a lease.

Consider the following Examples:

- T rents from B the right to erect a billboard on land owned by B
- The Gladys Glover character in It Should Happen to You;

- T contracts with B to install and operate a cosmetics concession in Bs department store; - T is allowed to farm Bs land, the consideration being that A will share the crops with B; - T rents a room for 2 months in Bs rustic country inn; - T works for B and is given a room in Bs house as partial compensation.


Donald J. Weidner

Relevant factors include:

Intention of the parties; The number and nature of the restrictions on use; The exclusivity of possession; The degree of control retained by the granting party; and The presence or absence of incidental services.


Donald J. Weidner


March 25, 1971 LL (LPP) Lease Agreement T
Ts president, who signed the lease, was a lawyer who specialized in real estate.

For period of 10 years commencing on the first day of the calendar month following the date of completion of [the renovations] Lease was silent regarding completion date). Rent: 10% of gross, with $22,000 minimum.

Donald J. Weidner

Arthur Treachers (contd)

T breached. The question was not liabilitythe question was the appropriate measure of damages. What is the measure of damages against a tenant who fails to take possession?
1. Consider the logic of a conveyance.
Price of the conveyance: unpaid rent. Analogy: Purchase of the fee
Price is owed even if Buyer does not take possession

2. Consider the logic of a contract.

The difference between the rent reserved in the lease and the fair rental value is the contracts measure of damages.
Dont specifically enforce the bargain, give only the benefit of the bargain.

Court said the concept of interesse termini applies in two situations:

1. when the term stated in the lease has commenced, but the lessee has not yet taken possession; and 2. when the lease is to take effect in the future.
38 Donald J. Weidner

Student Residence Hall Contract Agreement was held to be not a lease. Three basic possibilities: 1. License
A privilege to go upon land belonging to the licensor Permission to do acts upon anothers land that otherwise would constitute trespass With exceptions, license is revocable at the will of the licensor


2. Easement
A nonpossessory interest in the land of another Entitles the holder of the easement to a limited use or enjoyment of land in the possession of another Not terminable at the will of the possessor

3. Lease
A possessory interest in the land of another Leasehold requires that the lessees possession be more than merely coextensive with the lessor. However, there may be a reservation of a right to possession by the landlord for purposes not inconsistent with the privileges granted to the tenant.
39 Donald J. Weidner

Introduction to Race Discrimination in Property Law

As the text indicates, even a brief overview of antidiscrimination laws concerning real property requires some historical perspective. The history of antidiscrimination rules concerning property goes back to efforts to dismantle the institution of slavery. The background is harsh. The materials are unpleasant and difficult to consider. Yet we must consider the extent to which property rights were allocated along racial lines, and gain some perspective on the long struggle to provide equality of opportunity.
40 Donald J. Weidner

Slave Codes in the United States

Provisions quoted in the next few slides are taken from the South Carolina Slave Code of 1740, which reflected provisions similar to those in effect in other states. The slave codes were extensive and frequently amended. Slave Codes deemed slaves chattel and defined slavery in racial terms. For example, the South Carolina Code of 1740 declared that "all negroes...are hereby declared to be, and remain forever hereafter, absolute slaves, and shall follow the condition of the mother, and shall be deemed, held, taken, reputed and adjudged in law, to be chattels personal...."


Donald J. Weidner

Slave Codes (contd)

Slave Codes denied slaves the right to own property limiting even the quality of the cloth they could wear. Slaves had no right to travel elaborate permit systems required written approval before travel anywhere. Slaves were prohibited from learning the English language Special procedures were provided for criminal proceedings against slaves.


Donald J. Weidner

Slave Codes (contd)

Slave Codes also dealt with "free Negroes
Free Negroes would be tried by the same procedure as slaves. They would be subject to fines and thrown upon the auction block to satisfy payment.

F. Tannenbaum, Slave and Citizen (1946), was based on a seminar on the History of Slavery in the Western World given at Columbia University in 1938-39. Perhaps the most basic point of the book is that the term "slavery" embraces a range of institutions that vary in severity. See Id. at 65, no. 153:
43 Donald J. Weidner

Tannanbaum (contd)
There were, briefly speaking, three slave systems in the Western Hemisphere. The British, American, Dutch and Danish were at one extreme, and the Spanish and Portuguese at the other. In between these two fell the French. The first of these groups is characterized by the fact that they had no effective slave tradition, no slave law, and that their religious institutions were little concerned about the Negro. At the other extreme there were both a slave law and a belief that the spiritual personality of the slave transcended his slave status. In between them the French suffered from the lack of a slave tradition and slave law, but did have the same religious principles as the Spaniards and Portuguese. If one were forced to arrange these systems of slavery in order of severity, the Dutch would seem to stand as the hardest, the Portuguese as the mildest, and the French, in between, as having elements of both. 44 Donald J. Weidner

The Fifth Amendment to the United States Constitution provides, in part:
No person deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.


Donald J. Weidner

Roberts v. City of Boston, 59 Mass. 198 (1850); suit to end mandatory segregation in the Boston public schools on the basis of Massachusetts Constitution that provides, in part, that "all men, without distinction of color or race, are equal before the law...." Unsuccessful. Mr. Chief Justice Shaw explained, in part, as follows:


Donald J. Weidner

Roberts v. City of Boston (contd)

It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the [primary school] committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminatory and honest judgment.
47 Donald J. Weidner

Dred Scott v. Sanford, 60 U.S. 393 (1857): intent of constitution is that African Americans may not be citizens of the United States
even if they become citizens of a particular state.


Donald J. Weidner

Dred Scott (contd)

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation;
49 Donald J. Weidner

Dred Scott (contd)

or, that when they met in convention to form the Constitution they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion.
50 Donald J. Weidner

Dred Scott (contd)

More especially, it cannot be believed that the large slave-holding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.
51 Donald J. Weidner

Dred Scott (contd)

It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished;
52 Donald J. Weidner

Dred Scott (contd)

and it would given them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State....
53 Donald J. Weidner

Emancipation proclamation.

The Thirteenth Amendment to the United States Constitution provides:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.


Donald J. Weidner

13th Amendment (contd)

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Note that Jones v. Alfred Mayer said that Section 2 of the 13th Amendment empowered Congress to enact section1982.
Similarly, Starrett City stated that the Fair Housing Act, originally enacted as part of the Civil Rights Act of 1968, was enacted pursuant to the Congressional authority under section 2 of the 13th Amendment.


Donald J. Weidner

H. Horowitz and K. Karst, Law, Lawyers and Social Change 123-5 (1969)
In the south, emancipation was soon followed by the enactment of the "Black Codes", which wrote into law a systematic and thorough set of disabilities designed to maintain black men in a status that approached slavery almost as closely as the Thirteenth Amendment would allow. The Black Codes imposed disabilities to own or convey property, to inherit or purchase, or to have access to the courts. Other rules governing the employment relation gave an employer rights similar to those previously enjoyed by a slave owner. Perhaps the worst abuse of the legal system was the convict-lease (chain gang) system, which resulted in something that might be called de facto slavery for many thousands of black men....
56 Donald J. Weidner

The Black Codes and the Civil Rights Act of 1866 (contd)
In some states, the convict-lease system persisted well into the twentieth century. Some of the Black Codes were repealed or considerably softened by Reconstruction legislatures that sat while federal troops occupied the southern states. But enough of this legislation remained for the Reconstruction Congress to take a hand. The Civil Rights Act of 1866 was designed in major part to abolish the disabilities imposed by the Black Codes. It provided: 57 Donald J. Weidner

The Black Codes and the Civil Rights Act of 1866 (contd)
"That all persons born in the United States and not subject to any foreign power, ...are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous conditions of slavery or involuntary servitude...shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." 14 STAT. 27.
58 Donald J. Weidner

The Black Codes and the Civil Rights Act of 1866 Contd
This bill was passed by Congress on March 13, 1866, but was returned to Congress by President Andrew Johnson. He was of the view that Congress did not have power delegated by the Constitution to enact the statute.
Recall Dred Scott

The only possible basis of such power was section 2 of the Thirteenth Amendment,
which empowered Congress to "enforce" by appropriate legislation the abolition of slavery within the United States.

The rights declared in the statute were not, in President Johnsons view, sufficiently related to abolition to fall within the power of Congress under section 2.


Donald J. Weidner

The Black Codes and the Civil Rights Act of 1866 (contd)
Congress enacted the Civil Rights Act over the President's veto on April 9, 1866.
During the debate on the bill, however, even some ardent radical reconstructionists expressed constitutional concerns like those expressed by President Johnson.

Because many members of Congress doubted that the Thirteenth Amendment provided a sufficient constitutional basis for congressional power, it was proposed to offer to the states a new amendment that would, among other things, validate the 1866 Act.
60 Donald J. Weidner

The Black Codes and the Civil Rights Act of 1866 (contd)
The result was the Fourteenth Amendment, which occupied the attention of Congress from the time of adoption of the Civil Rights Act of 1866 until June 13, 1866, when the House of Representatives adopted the Senate version, and the amendment went to the state legislatures for ratification. The Fourteenth Amendment became law in 1868.
61 Donald J. Weidner

The Fourteenth Amendment to the United States Constitution, which became law in 1868, provides, in part:
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Donald J. Weidner

1868 Contd
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As the text points out: The Fourteenth Amendment prohibits only state (not private) action, but the Supreme Courts [1948] decision in Shelley v. Kramer [see below] effectively eliminated at least some private discrimination as well.


Donald J. Weidner

The Fifteenth Amendment provides that the right to vote is not to be denied on account of race;
Congress is given the power to enforce.


Donald J. Weidner

Jim Crow Laws

C. Vann Woodward, the Strange Career of Jim Crow 65 (3d ed. 1974):
My only purpose has been to indicate that things have not always been the same in the South. In a time when the Negroes formed a much larger proportion of the population than they did later, when slavery was a live memory in the minds of both races, and when the memory of the hardships and bitterness of Reconstruction was still fresh, the race policies accepted and pursued in the South were sometimes milder than they became later. The policies of proscription, segregation, and disfranchisement that are often described as the immutable `folkways' of the South, impervious alike to legislative reform and armed intervention, are of a more recent origin. The effort to justify them as a consequence of Reconstruction and a necessity of the times is embarrassed by the fact that they did not originate in those times. And the belief that they are immutable and unchangeable is not supported by history.
65 Donald J. Weidner

Civil Rights Cases (1883): Test case that arose in N.Y.C. African American man went with a light-skinned African American woman to a theater. She was admitted, he was not.
He sued under the Civil Rights Act of 1875 (a public accommodations statute). Court said that Congress did not have the power to enact the Civil Rights Act of 1875.


Donald J. Weidner

Civil Rights Cases (contd)

"Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa." There is no power under section 5 of the 14th Amendment to stop purely private discrimination. Stated differently, there is no state action against which the 14th Amendment can operate.
67 Donald J. Weidner

In Plessy v. Ferguson, (1896), the Supreme Court rejected a Fourteenth Amendment challenge to an 1890 statute that required "equal but separate accommodations" for African American railroad passengers. The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a co-mingling of the two races upon terms unsatisfactory to either.


Donald J. Weidner

Plessy v. Ferguson (contd)

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. ***If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane....
69 Donald J. Weidner

Buchanan v. Warley, (1917): an ordinance of the City of Louisville "prevents the occupancy of a lot in the city of Louisville by a person of color in a block where the greater number of residences are occupied by white persons." Invalid:
We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.


Donald J. Weidner

In Village of Euclid v. Ambler Realty Co., (1926), the Supreme Court upheld the basic pattern of zoning set out in the Standard State Zoning Enabling Act. It did so even though the District Court had concluded the following about the ordinance:
In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true reason why some persons live in a mansion and others in a double-family dwelling, why some live in a two-family dwelling and others in an apartment, or why some live in a well-kept apartment and others in a tenement, is primarily economic. It is a matter of income and wealth, plus the labor and difficulty of procuring adequate domestic service.
71 Donald J. Weidner

Shelley V. Kraemer, (1948): the Supreme Court of Missouri had ordered a lower court to grant the relief requested by a plaintiff asserting the benefit of a racially restrictive covenant
no "people of the Negro or Mongolian Race" to occupy as owners or tenants.

African American purchasers, Shelleys, purchased and moved upon a restricted parcel. The relief requested was that the Shelleys be restrained from taking possession and that title be taken from them and revested "in the immediate grantor or in such other person as the court should direct."


Donald J. Weidner

Shelley v. Kraemer (contd)

Shelleys came to the United States Supreme Court relying on the
equal protection, due process and privileges and immunities

clauses of the Fourteenth Amendment. The Supreme Court said that:

Equality in the enjoyment of property rights was regarded by the framers of [the Fourteenth] Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the amendment was intended to guarantee.


Donald J. Weidner

Shelley v. Kraemer (contd)

Nevertheless, "the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to [the Shelleys] by the Fourteenth Amendment.
So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear that there has been no action by the State, and the provisions of the Amendment have not been violated."

"But here there was more.

the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements."
74 Donald J. Weidner

Shelley v. Kraemer (contd)

These are . . . cases in which the States have made available to [private] individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.
Willing buyer, willing seller, said to be the key to Shelley


Donald J. Weidner

Shelley v. Kraemer (contd)

The enforcement of the restrictive covenants by the state courts in these cases was directed pursuant to the common-law policy of the States.... Nor is the [Fourteenth] Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement.
76 Donald J. Weidner

Shelley v. Kraemer (contd)

Shelley rejected the argument that there was no Fourteenth Amendment violation because the state courts stood ready to enforce restrictive covenants in a racially neutral manner. It also rejected the argument that equal protection was being denied the beneficiaries of the racially restrictive agreement:
The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment. (emphasis added)
77 Donald J. Weidner

The federal Fair Housing Act was originally adopted in 1968.
It has subsequently been amended several times.


Donald J. Weidner

1968 (contd)
Jones v. Alfred H. Mayer Co. involved a complaint that someone had refused to sell Mr. Jones a home for the sole reason that he was black. The case was decided on the basis of 42 U.S.C. 1982, which was originally contained in the Civil Rights Act of 1866:
1982. Property rights of citizens. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.


Donald J. Weidner

Jones v. Alfred H. Mayer (contd)

As the text indicates (at 463), the Civil Rights Act of 1866 promised to do much more than prohibit state action, at least with respect to property transactions. However, [t]his measure had essentially no impact on private housing discrimination during the first century of its life.
80 Donald J. Weidner

Jones v. Alfred H. Mayer (contd)

Both the District Court and the Eight Circuit found against Jones on the ground that section 1982 applies only to state action, and does not reach private refusals to sell. The Supreme Court reversed, stating:
We hold that 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.
81 Donald J. Weidner

Jones v. Alfred H. Mayer (contd)

"Claims under the Civil Rights Act of 1866 . . . probably require proof of intentional or purposeful discrimination; claims based on the equal protection clause clearly do." Case law under the Fair Housing Act suggests that
a prima facie case can be made based solely on the basis of discriminatory effect although it can be rebutted by a showing of nondiscriminatory intent.
82 Donald J. Weidner

Fair Housing Act of 1968

Originally enacted in 1968, amended several times since. Nothing except the advertising prohibition (3604(c)) applies to
1. A single-family house sold or rented by an owner, or 2. Units in dwellings containing living quarters occupied by no more than 4 families living independently, if the owner occupies one of the units as the owners residence.
83 Donald J. Weidner

Fair Housing Act (contd)

The Fair Housing Act provides that it shall be unlawful
To refuse to sell or rent . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin. 3604(a) To make . . . any . . . statement . . . with respect to the sale or rental of a dwelling, that indicates any preference . . . based on race, color, religion, sex, handicap, familial status, or national origin . . . . 3604(c) To discriminate in the sale or rental . . . [of] a dwelling . . . because of a handicap 3604(f)
Discrimination is specially defined for this purpose 3604(f)(3)

Anyone injured by a discriminatory practice may commence a civil suit for injunctive relief and damages
including punitive damages
84 Donald J. Weidner

Jones v. Alfred H. Mayer Co.

Court held that the 1866 provision (Section 1982) bars all racial discrimination, private and public, in the sale or rental of property.
Recall, section 1982 provides: All citizens . . . shall have the same right, in every State and Territory, as in enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property.

The 1866 Act is narrower than the Fair Housing Act in that it
only reaches racial discrimination does not deal with discrimination in the provision of services and facilities, and does not prohibit discriminatory advertising.

The 1866 Act is broader than the Fair Housing Act in that it
contains none of the exemptions found in the Fair Housing Act.


Donald J. Weidner

Question at 463
Ms. Murphy has an apartment to rent in her home. She puts the following advertisement in a local newspaper:
For rent: Furnished basement apartment in private white home. Call 376-7410. A Black couple applies and is rejected by Mrs. Murphy because of race.

Are there any violations of

3604(a)? 3604(c)? 1982?


Donald J. Weidner

HANNAN v. DUSCH (p. 478)

In August, LL conveys to NT a term of 15 years to begin on January 1. On January 1, a holdover tenant, HT, was in possession, preventing the NT from moving in. LL took no action against HT. There is no express covenant as to the delivery of the premises nor for the quiet possession of the premises of the lessee. The single question of law . . . is, whether without an express covenant there is nevertheless an implied covenant to deliver possession. How do you select the appropriate rule?


Donald J. Weidner

Hannan v. Dusch (contd)

Court mentions three analogous rules:
The LL has a duty to put the T in legal possession. If a T in actual possession is disturbed by a trespasser, the LL is under no duty to dispatch the trespasser. The LL assures to the T quiet possession as against all who rightfully claim through or under the LL.


Donald J. Weidner

Hannan v. Dusch (contd)

What are the arguments in favor of the American rule, which says that a LL is obligated only to put the T in legal possession, not actual possession (presumably, in the absence of an agreement to the contrary)?
Analogy to the conveyance of a fee. The LL has not covenanted against the torts of another and should not be responsible for them. Virginia Statute provided that Unlawful Detainer shall lie:
for one entitled to possession in any case in which a tenant shall detain the possession of land after his right has expired without the consent of him who is entitled to possession.

Note: If you adopt the English rule, should it be a

default rule (as Restatement, 2d says) or a mandatory rule (as URLTA says)?
89 Donald J. Weidner

Hannan v. Dusch (contd)

What are the arguments in favor of the English Rule, which implies a covenant by the LL to put the T in actual possession, not merely to give the tenant the legal right to possession?
Whether a T plans to hold over is almost always known by the LL
Or, at the very least, is more likely to be known by the LL than by the NT

In the action to recover possession from the HT, a NT would have to rely on facts concerning the right to possession that are known by the LL. Do both boil down to: put the duty on the person who can satisfy it at lowest cost? Is there any other argument in favor of the English rule?


Donald J. Weidner