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PROPERTY – SPRING 2017
MIDTERM ESSAY
ID #0116543 -Maureen Kordesh I. Can Chandler (“C”) evict Estrella (“E”) for breach of quiet enjoyment to other tenants from voluntary waste? R: When one acts intentional, unreasonable, and substantially interferes with the use of other’s enjoyment. Voluntary waste results from an affirmative act that significantly reduces the value of the property. A landlord may evict a tenant due to a breach of another tenants’ covenant of quiet enjoyment. F: E and C have entered in to a term of years’ tenancy that ends in 2021. E has been a tenant since June 2009. Per the lease agreement: “No use shall…. In Landlord’s judgment, waste, a nuisance, or unreasonable annoyance which may disturb the quiet enjoyment of other residential or commercial tenants…. or which will create or emit… hazardous … fumes, odors, or other substances... Tenant agrees not to conduct or operate its business in any manner that could constitute a nuisance to or interfere with any business or enjoyment of other tenants of the buildings.” A: E’s salon uses chemicals that cause illness and birth defects. The smell of these chemicals has caused other tenants to complain about their right of quiet enjoyment. Wheeler (“W”), the owner of the coffee shop next store has lost business and has complained to C about the fumes and awareness of the dangers of inhalation. This voluntary waste has caused a nuisance in the enjoyment of C’s tenants and decreased the value of the coffee shops business. Tenants and customers are concerned with their health, and do not want to inhale the salon’s chemicals. Pursuant to the lease agreement in Article 6, E agreed not to conduct and operate its business in any manner that could interfere with
any business or enjoyment of other tenants of the Building, therefore E’s breach of contract, voluntary waste and interference of other tenant’s quiet enjoyment allows for C to evict E. C: E has been a tenant for 7 ½ years. For the entire tenancy E has been a beauty salon. They have used the same chemicals since the first day. They have followed their lease agreement. They have not brought “any toxic or hazardous substances into the building or the leased premises except as such substances are used or sold in the ordinary course of Tenant’s business operations from the premises.” E has not disposed of the chemicals it uses improperly. W’s water test showed no contaminants traceable to the salon. E has not breached its lease with C, therefore cannot be evicted. W was aware of the chemicals from the salon when he signed his lease with C in 2012. E has not changed any of the original products or brought in any additional toxics or waste since the origination of the lease, therefore, there has not been any voluntary waste. Re: E is aware of the press regarding the chemicals correlation with the various illness and birth defects and have are aware of the health dangers to the residents and businesses. No safety precautions to eliminate the hazard has been made. C: C may evict E for breach of other’s quiet enjoyment. I: Does C have a good cause to evict and terminate Olson’s (“O”) lease? R: A landlord encompasses the right to exclude when a periodic tenant has failed to pay rent, tenant has used the premises to participate in criminal activity, has participated in violation of laws that are not criminal, or has breached the terms in their lease. F: Toby (“T”) contacted C to tell C that his residential tenant in 601, O may be doing tattoos and body piercings in her apartment. O has admitted that she was doing tattoos and
Premises, or the Building (Not Caused by Tenant) that materially and adversely affects tenants use of, or operations from, the Premises, and if Landlord has failed to cure such adverse effect and if such interferences continues for more than ninety (90) days, Tenant may terminate this Lease without Penalty.” Environment reports have been provided to W, including E’s lease and list of compounds used by E in the ordinary course of its business. A: W and C’s lease began in 2012. W has made C aware that customers have complained about the chemical odors from E. The drop-off of W’s business was caused by the fumes from the use of E’s chemicals. These chemical odors leaking in the coffee shop have caused customers to be fearful of the inhalation and possible illness. The landlord’s covenant allows the Tenant to terminate the lease without penalty, if interference continues for more than 90 days. The business dropped 20 percent within the last year due to these chemical odors interfering. As the lease states, he may terminate the lease without penalty. CA: C has given the Environmental Report of E’s and what the list of compounds found in the chemicals used by E to W in 2012. W was aware of the Hazardous Substances since 2012 and continued his tenancy for the past five years. In 2012 the odors were known and W entered the lease. He has continued to stay in the lease, even after a year of profits dropping. W could have left after 90 days from the date that the interference began, because he has continued his lease with C and tolerated the alleged untenantable conditions for more than a year, he has no claim of constructive eviction or termination without penalty. Re: The chemicals emitted in the air by E have recently been found to be hazardous and therefore, due to the recent finding has interfered with his business.
C: W can show that due to the interference and the covenant in the agreement that he has been constructively evicted. I: Has Hamilton (H) adversely possessed (AP) the storage units in the basement of the building? R: A person may acquire the land of another by having actual, exclusive, open and notorious, adverse and hostile, and continuous possession of the property for the statutory period of time of10 years. F: H has been living in the storage space of Tellers and Clauson. H has been living there for 11 years. The residents all recognize him and have seen him in the common community areas of the building. Residents thought he worked there or lived nearby. H has receipts to show deliveries made to him in the building. H has a key to the basement and the storage unit. Basement access is limited to residents and requires a key for entry, whether by staircase or by elevator. Shop owners and residents in nearby buildings stated that H told them that he lived in the building. H uses the laundry machines, shower, toilet, refrigerator, and microwave and occasionally watches the TV in the basement. SI: Did H have open and notorious possession? SR: The possession must be visible and obvious, so if the owner made a reasonable inspection of the land, he would become aware of the adverse claim. SA: H has never exercised control and possession, as most of the tenants only stated they had seen him in the basement or main foyer of the building, but no one stated they had seen him in actual possession of the storage units. SCA: H exercised control and possession of the storage units for the past eleven years by having a key to the common areas and to the storage units. Others have also seen him in the
R : The 4-year tenancy that G has already had, indicates that this no longer is mislaid property, but rather lost. Lost Property is property that the true owner has unintentionally parted with. The finder of lost property has relatively better title than everyone other than the true owner. F: G has found fifty diamonds while cleaning her guest room closet on the highest shelf in the closet. The dusty bag had fallen while she was removing items. G has had the diamonds appraised, and were valued at $40,000. C has never been in the closet, and has only had a cursory look when he bought the building 9 years ago. A: G found a dusty bag of diamonds in her apartment closet. The diamonds were valued at $40,000. G is a lawful occupant with rights to use and enjoy her apartment, she is not an employee or in the apartment for special purposes. Therefore, as the finder of lost property, G is entitled to it as against all persons except the real owner. The facts indicate that C not knowing of the diamonds, could not have the intent to appropriate it, and, having invited G as a lessee, C could not have the intent to exclude G from it. C had no possession of the diamonds and lacks “de facto control.” CA: C has constructive possession. “The possessor of land is generally entitled, as against the finder, to chattels found on the land.” That a man possesses everything which is attached to or under his land. “Where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be in it, then, if something is found on that land, the presumption is that the possession of that thing is in the owner of the locus in quo.” Since the apartment that G is leasing is owned by C, the diamonds found in the closet, was the first to obtain possession of them, she obtained them for C and cannot claim title for herself. Even though the diamonds were found inside G’s
apartment, the diamonds were not passed to G by the demise, but was the property of C even though he was ignorant of its existent at the time of granting the lease. Re: The diamonds cannot be claimed by C because C has never been in the closet, and has only had a cursory look 9 years ago; therefore, the diamonds are clear to be lost property and it was “found” by G in the ordinary meaning. Since C transferred his possession of the apartment to G and it has been 4 years she has held possession, C has no right to owning objects later found within the apartment. C : G, the finder who had possession first, has the right to keep the diamonds over C. I: If Parker (P) and Howard (H) entered a sublease (“SL”), how would this be a benefit to C? R: A SL essentially involves two separate landlord-tenant relationships. The tenant (the sublessor) transfers part of her interest in the lease premises to a third party. F: P does not have enough business to support his store, he wants to bring in H who will be available to customers for advice on updating their office space, and will occupy 20% of the floor space until P’s lease ends on 10/31/19. A: P and H can only enter a SL because P is only transferring 20% of his interest in the floor space to H, and will remain the other 80% of his interest in his lease of the floor space. Since P has not had enough business to support his store, a SL would be beneficial for C to receive the rent. C and P’s privity of contract and privity of estate, will continue their mutual rights and duties of their original landlord-tenant relationship remains intact. However, a new landlord-tenant relationship will form with H and P and privity of contract and privity of estate forms. Since P doesn’t have enough business, the 20% from H will help him make the rent. P is the only one that has a duty owed to C to pay the rent.
