real property and environmental law

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Real Property and Environmental Law

Chapter 24

BUSINESS LAW TODAYBUSINESS LAW TODAY Essentials 9Essentials 9thth Ed. Ed.Roger LeRoy Miller - Institute for University Studies, Arlington, TexasRoger LeRoy Miller - Institute for University Studies, Arlington, TexasGaylord A. Jentz - University of Texas at Austin, EmeritusGaylord A. Jentz - University of Texas at Austin, Emeritus


Learning ObjectivesLearning Objectives What can a person who holds property in fee What can a person who holds property in fee

simple do with the property? simple do with the property? What are the requirements for acquiring What are the requirements for acquiring

property by adverse possession?property by adverse possession? What limitations may be imposed on rights of What limitations may be imposed on rights of

property owners? property owners? What is a leasehold estate? What types of What is a leasehold estate? What types of

leasehold estates, or tenancies, can be leasehold estates, or tenancies, can be created when real property is leased?created when real property is leased?

What are the respective duties of the What are the respective duties of the landlord and tenant concerning the use and landlord and tenant concerning the use and maintenance of leased property? maintenance of leased property?


Nature of Real PropertyNature of Real Property Real property is immovable and Real property is immovable and

includes: includes: Land & Permanent Buildings.Land & Permanent Buildings.Airspace & Subsurface Rights.Airspace & Subsurface Rights.Plant Life and Vegetation.Plant Life and Vegetation.Subsurface (mineral) rights.Subsurface (mineral) rights.Fixtures.Fixtures.


A fixture is personal property that A fixture is personal property that becomes permanently affixed to real becomes permanently affixed to real property.property.Intent that it become a fixture is necessary.Intent that it become a fixture is necessary.Intent is determined by:Intent is determined by:

• The fact that the property cannot be removed The fact that the property cannot be removed without causing damage to the realty.without causing damage to the realty.

• The fact that the property is so adapted to The fact that the property is so adapted to the realty that it has become part of the the realty that it has become part of the realty.realty.

FixturesFixtures


Trade fixtures: installed for Trade fixtures: installed for commercialcommercial purposes by a tenant.purposes by a tenant.

They remain the property of the tenant They remain the property of the tenant and can be removed when tenant and can be removed when tenant leaves, repairing any damage caused leaves, repairing any damage caused by removal.by removal.

Trade FixturesTrade Fixtures


Ownership in Fee SimpleOwnership in Fee Simple The Fee Simple (sometimes called fee simple The Fee Simple (sometimes called fee simple

absolute) gives the owner the greatest absolute) gives the owner the greatest aggregation of rights, powers and privileges aggregation of rights, powers and privileges possible under American law and can possible under American law and can assigned to heirs.assigned to heirs.

A “conveyance” (transfer of real estate) A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the “from A to B” creates a fee simple. A is the GrantorGrantor and B is the and B is the GranteeGrantee..


Estate that lasts for the life of some specified Estate that lasts for the life of some specified individual. “A grants Blackacre to B for B’s individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre. life” grants B a life estate in Blackacre.

When B dies, Blackacre returns to A or his When B dies, Blackacre returns to A or his heirs or assigns, or a third party in the same heirs or assigns, or a third party in the same condition, normal wear and tear excepted.condition, normal wear and tear excepted.

Grantor A retains a “future interest” in the Grantor A retains a “future interest” in the property. property.

During B’s life, she can possess, use, and During B’s life, she can possess, use, and take the fruits of the estate, but not take from take the fruits of the estate, but not take from the property itself.the property itself.

Life EstatesLife Estates


An An easementeasement is a right of a person to make is a right of a person to make limited use of another person's real property limited use of another person's real property without taking anything from the property.without taking anything from the property.

A A profitprofit is the right to go onto land in is the right to go onto land in possession of another and take away some possession of another and take away some part of the land itself or some product of the part of the land itself or some product of the land.land.

Property that is benefited by easement/profit Property that is benefited by easement/profit carries the the interest with the sale of land.carries the the interest with the sale of land.

Nonpossessory Interests Nonpossessory Interests


Creation of an Easement or Creation of an Easement or ProfitProfit

Easements or profits can be created Easements or profits can be created by:by:Deed (physical delivery is sufficient).Deed (physical delivery is sufficient).Will (at Grantor’s death).Will (at Grantor’s death).Contract between Grantor and Grantee.Contract between Grantor and Grantee.Implication: circumstances surrounding Implication: circumstances surrounding

creation of easement imply its creation.creation of easement imply its creation.Necessity.Necessity.Prescription: easement by adverse Prescription: easement by adverse

possession.possession.


By deed back to owner of the land By deed back to owner of the land burdened by it.burdened by it.

Owner of easement or profit becomes Owner of easement or profit becomes owner of the land burdened with it.owner of the land burdened with it.

Abandonment by the owner of the right.Abandonment by the owner of the right.

Termination of an Easement or Termination of an Easement or ProfitProfit


LicenseLicense Revocable right of a person to come unto Revocable right of a person to come unto

another’s land without removing anything from another’s land without removing anything from the land.the land.

Personal privilege that arises from the consent Personal privilege that arises from the consent of the owner of the land that can be revoked.of the owner of the land that can be revoked.

CASE 24.1CASE 24.1 Roman Catholic Church of our Roman Catholic Church of our Lady of Sorrows v. Prince Realty Management, Lady of Sorrows v. Prince Realty Management, LLC LLC (2008). (2008). License to install temporary plywood License to install temporary plywood fence around construction site, does not extend to fence around construction site, does not extend to more permanent structures such as steel piles and more permanent structures such as steel piles and beams.beams.


Ownership in real property can be Ownership in real property can be transferred by: transferred by: A written Deed.A written Deed.A Gift.A Gift.A Sale.A Sale.An Inheritance.An Inheritance.Adverse Possession.Adverse Possession.Eminent Domain.Eminent Domain.

Transfer of OwnershipTransfer of Ownership


A Deed is the instrument setting forth A Deed is the instrument setting forth the interests in real property being the interests in real property being transferred.transferred.

Necessary components of a Deed:Necessary components of a Deed:Names of Grantor and Grantee.Names of Grantor and Grantee.Words evidencing intent to convey.Words evidencing intent to convey.Legally sufficient description of the land.Legally sufficient description of the land.Grantor’s signature.Grantor’s signature.Delivery of the Deed.Delivery of the Deed.

DeedsDeeds


Warranty Deed.Warranty Deed.Special Warranty Deed.Special Warranty Deed.Implied Warranties in New Homes.Implied Warranties in New Homes.

Quitclaim Deed.Quitclaim Deed. Grant Deed.Grant Deed. Sheriff’s Deed.Sheriff’s Deed.

Period of redemption.Period of redemption.

Types of DeedsTypes of Deeds


Recording a deed (Recording a deed (or any interest in or any interest in real propertyreal property) puts the public on notice ) puts the public on notice of the new owner’s interest in the land of the new owner’s interest in the land and prevents the previous owner from and prevents the previous owner from fraudulently conveying the same fraudulently conveying the same interest to another buyer.interest to another buyer.

Race statute.Race statute.Pure notice statute.Pure notice statute.Notice-race statute.Notice-race statute.

Recording StatutesRecording Statutes


Owner of real property dies, his Owner of real property dies, his property is transferred by:property is transferred by:Will (testate).Will (testate).Without Will (intestate).Without Will (intestate).

Title is transferred at the time state law Title is transferred at the time state law so provides in its testate and intestate so provides in its testate and intestate laws.laws.

Will or InheritanceWill or Inheritance


One person possesses the property of One person possesses the property of another for a certain statutory period of another for a certain statutory period of time, that person automatically acquires time, that person automatically acquires title to the land, just title to the land, just as if there had been as if there had been a conveyance by deed. Must be:a conveyance by deed. Must be:Actual and exclusive.Actual and exclusive.Open, visible and notorious.Open, visible and notorious.Continuous and peaceable.Continuous and peaceable.Hostile and adverse.Hostile and adverse.

Adverse PossessionAdverse Possession


Rights in property are not absolute. They Rights in property are not absolute. They are constrained by federal and state laws, are constrained by federal and state laws, e.g.,e.g., nuisance, tax and environmental. nuisance, tax and environmental.

A “Taking” By A “Taking” By Eminent DomainEminent Domain: The 5: The 5thth amendment gives the government the amendment gives the government the right to “take” private land for public use right to “take” private land for public use with just compensation. with just compensation.

CASE 24.2CASE 24.2 Drake v. Walton County Drake v. Walton County (2009). (2009). The Drakes reasonably relied on a stabilized The Drakes reasonably relied on a stabilized drainage system when they purchased property. drainage system when they purchased property. When the county permanently changed the When the county permanently changed the drainage, a portion of Drake’s property was drainage, a portion of Drake’s property was taken without just compensation.taken without just compensation.

Eminent DomainEminent Domain


Leasehold Estates Leasehold Estates Anyone who rents housing to the public Anyone who rents housing to the public

for commercial purposes subjects herself for commercial purposes subjects herself to various state and federal Landlord-to various state and federal Landlord-Tenant laws.Tenant laws.

Owner of the property is the LESSOR and Owner of the property is the LESSOR and Tenant is LESSEE; the contract is called Tenant is LESSEE; the contract is called the LEASE. The property interest is called the LEASE. The property interest is called a leasehold estate.a leasehold estate.


Tenancy InterestsTenancy Interests Tenancy for Years.Tenancy for Years.

Created by an express contract.Created by an express contract.Property is leased for a specified period of time.Property is leased for a specified period of time.

Periodic Tenancy.Periodic Tenancy.Does not specify how long lease lasts.Does not specify how long lease lasts.But rent paid at certain intervals.But rent paid at certain intervals.

Tenancy at Will.Tenancy at Will.For as long as both agree. For as long as both agree.

Tenancy at Sufferance.Tenancy at Sufferance.Wrongful possession without the right to Wrongful possession without the right to

possess.possess.


Lease Agreement can be oral or written Lease Agreement can be oral or written (oral may not be enforceable). Lease (oral may not be enforceable). Lease gives Tenant the temporary right to gives Tenant the temporary right to exclusively possess the property.exclusively possess the property.

Sources of Law:Sources of Law:Common Law.Common Law.State and Local Statutes, andState and Local Statutes, andThe Uniform Residential Landlord and Tenant The Uniform Residential Landlord and Tenant

Act (URLTA) which has been adopted by 1/4 Act (URLTA) which has been adopted by 1/4 of the states.of the states.

Landlord-Tenant RelationshipsLandlord-Tenant Relationships


Trend in the law is to curtail, by Trend in the law is to curtail, by contract and real estate law, the contract and real estate law, the immense freedom that Landlords had immense freedom that Landlords had in the past.in the past.Possession.Possession.Using the Premises.Using the Premises.Maintaining the Premises.Maintaining the Premises.Rent.Rent.

Rights and DutiesRights and Duties


Landlord has a duty to deliver actual Landlord has a duty to deliver actual physical physical possessionpossession under URLTA under URLTA oror legal right to possession (“American” legal right to possession (“American” rule). rule). Tenant’s right to exclusive possession is only Tenant’s right to exclusive possession is only

subject to Landlord’s limited right to come unto subject to Landlord’s limited right to come unto the property.the property.

Tenant has a “covenant of quiet enjoyment” by Tenant has a “covenant of quiet enjoyment” by which Landlord promises Tenant’s peace and which Landlord promises Tenant’s peace and enjoyment of the property. enjoyment of the property.



EvictionEviction occurs when Landlord: occurs when Landlord:Deprives Tenant of possession of the leased Deprives Tenant of possession of the leased

property; orproperty; orInterferes with this use or enjoyment of the Interferes with this use or enjoyment of the

property to the extent that Tenant cannot use or property to the extent that Tenant cannot use or enjoy.enjoy.

ConstructiveConstructive eviction occurs when: eviction occurs when: Landlord Landlord breaches lease or covenant or quiet breaches lease or covenant or quiet

enjoyment; and enjoyment; and Landlord makes it impossible for the Tenant to Landlord makes it impossible for the Tenant to

use and enjoy the propertyuse and enjoy the property..



Implied Warranty of Habitability: Implied Warranty of Habitability: Landlord must furnish premises in Landlord must furnish premises in habitable condition.habitable condition.Landlord is responsible for maintaining Landlord is responsible for maintaining

common areascommon areas such as stairs, parking lots, such as stairs, parking lots, elevators and swimming pools.elevators and swimming pools.

Commercial property -- may still require Commercial property -- may still require TenantTenant to maintain depending on the to maintain depending on the lease.lease.

Implied Warranty of HabitabilityImplied Warranty of Habitability


Implied Warranty of HabitabilityImplied Warranty of Habitability To determine whether a breach has To determine whether a breach has

occurred, courts consider:occurred, courts consider:Whether Tenant caused damage.Whether Tenant caused damage.How long defect existed and age of building.How long defect existed and age of building.Defects impact on Tenant’s safety and Defects impact on Tenant’s safety and

health.health.Whether defect contravenes relevant Whether defect contravenes relevant

statutes.statutes.


Rent is Tenant’s payment to the Rent is Tenant’s payment to the Landlord for the Tenant’s occupancy or Landlord for the Tenant’s occupancy or use of the Landlord’s real property.use of the Landlord’s real property.Payment based on agreement, custom, state Payment based on agreement, custom, state

statute, waiver.statute, waiver. Security Deposits.Security Deposits.

A deposit by Tenant which Landlord may retain A deposit by Tenant which Landlord may retain for non-payment of rent or damage to premises.for non-payment of rent or damage to premises.

URLTA has specific provisions as to when it URLTA has specific provisions as to when it may be kept and when it must be returned.may be kept and when it must be returned.

RentRent


Transferring Landlord's Interest.Transferring Landlord's Interest.Landlord may sell any and all of his rights in Landlord may sell any and all of his rights in

the real property.the real property.New owner buys “subject to the lease,” if New owner buys “subject to the lease,” if

lease is recorded.lease is recorded. Transferring Tenant’s Interest.Transferring Tenant’s Interest.

Landlord’s consent may or may not be Landlord’s consent may or may not be required by statute or the lease itself.required by statute or the lease itself.

Transferring Rights to Leased Transferring Rights to Leased PropertyProperty


Transferring the Tenant’s Interest (Transferring the Tenant’s Interest (cont’dcont’d))Assignments: Tenant transfers his entire interest Assignments: Tenant transfers his entire interest

in the lease to a third person. Original Tenant is in the lease to a third person. Original Tenant is not released from liability under the lease.not released from liability under the lease.

Subleases: Tenant transfers all or part of his Subleases: Tenant transfers all or part of his interest in the lease for a shorter period of time interest in the lease for a shorter period of time than the lease. Original Tenant is not relieved of than the lease. Original Tenant is not relieved of liability under the lease.liability under the lease.

Transferring RightsTransferring Rights


The principal sources of environmental The principal sources of environmental law are:law are:Common Law Actions. Common Law Actions. State and Local Regulation. State and Local Regulation. Federal Regulation. Federal Regulation.

Environmental LawEnvironmental Law


Nuisance.Nuisance.Person liable if they use their property in a Person liable if they use their property in a

manner that unreasonably interferes with manner that unreasonably interferes with others’ rights to use or enjoy their own others’ rights to use or enjoy their own property.property.

Negligence and Strict Liability.Negligence and Strict Liability.Business or person alleged failure to use Business or person alleged failure to use

reasonable care toward a party whose injury reasonable care toward a party whose injury was foreseeable and, or course, caused by was foreseeable and, or course, caused by the lack of reasonable care.the lack of reasonable care.

Common Law ActionsCommon Law Actions


Federal environmental policy is achieved Federal environmental policy is achieved through federal agencies: through federal agencies: Example: Environmental Protection Agency [Example: Environmental Protection Agency [

http://www.epa.govhttp://www.epa.gov] (EPA).] (EPA).Regulatory agencies must take environmental Regulatory agencies must take environmental

factors into consideration when making factors into consideration when making significant decisions.significant decisions.

Federal, State, and Local Federal, State, and Local RegulationRegulation

http://www.epa.gov/


Federal RegulationFederal Regulation National Environmental Policy Act National Environmental Policy Act

(NEPA).(NEPA).Does not directly deal with pollution control.Does not directly deal with pollution control.Require preparation of an environmental impact Require preparation of an environmental impact

statement (EIS) when major federal action in statement (EIS) when major federal action in the environment is to be undertaken.the environment is to be undertaken.

Media Specific Pollution Control Media Specific Pollution Control Legislation.Legislation.


An EIS must analyze:An EIS must analyze:The impact of the proposed action on the The impact of the proposed action on the

environment.environment.Any adverse effects of the action and Any adverse effects of the action and

alternatives to the action.alternatives to the action.Any irreversible effects the action might Any irreversible effects the action might

generate.generate.

Environmental Impact Environmental Impact StatementStatement


Clean Air ActClean Air Act..This act provides the basis for issuing This act provides the basis for issuing

regulations to control pollution coming regulations to control pollution coming primarily from primarily from stationarystationary (factories) and (factories) and mobilemobile (cars) sources of air pollution. (cars) sources of air pollution.

It prescribes the use of pollution control It prescribes the use of pollution control equipment that represents the maximum equipment that represents the maximum achievable control technology.achievable control technology.

Air PollutionAir Pollution


Clean Water Act goalsClean Water Act goals:: Safe swimming and drinking water.Safe swimming and drinking water. Protection of fish and wildlife (wetlands).Protection of fish and wildlife (wetlands). Elimination of the discharge of pollutants into waterways Elimination of the discharge of pollutants into waterways

(navigable waterways).(navigable waterways). Established national permitting system for regulating Established national permitting system for regulating

discharges from “point sources.”discharges from “point sources.” What about comparable economic costs of power What about comparable economic costs of power

plants? plants? CASE 24.3CASE 24.3 Entergy Corp. v. Riverkeeper, Inc. Entergy Corp. v. Riverkeeper, Inc. (2009).(2009).

EPA has the power to do a cost-benefit analysis to EPA has the power to do a cost-benefit analysis to determine whether a plant has the “best technology determine whether a plant has the “best technology available for minimizing adverse environmental impact.”available for minimizing adverse environmental impact.”

Water PollutionWater Pollution


Water PollutionWater Pollution Drinking Water.Drinking Water.

Safe Drinking Water Act of 1974, amended in Safe Drinking Water Act of 1974, amended in 1996.1996.

Ocean Dumping.Ocean Dumping.Marine Protection, Research, and Sanctuaries Marine Protection, Research, and Sanctuaries

Act of 1972, amended in 1983. Establishes a Act of 1972, amended in 1983. Establishes a permit program of toxic waste.permit program of toxic waste.

Oil Pollution.Oil Pollution.Oil Pollution Act of 1990.Oil Pollution Act of 1990.


Federal Insecticide, Fungicide, and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).Rodenticide Act (FIFRA). Regulates the use of pest control Regulates the use of pest control

chemicals in the process of food growth chemicals in the process of food growth to food packaging, to minimize their to food packaging, to minimize their presence in foods consumed.presence in foods consumed.

Toxic Substances Control Act.Toxic Substances Control Act. Requires anyone planning to use Requires anyone planning to use

chemicals first determine their effect on chemicals first determine their effect on human health and the environment.human health and the environment.

Require special labeling, limit the use of Require special labeling, limit the use of substance, set production quotas, or substance, set production quotas, or prohibit the use of a substance prohibit the use of a substance altogether.altogether.

Toxic ChemicalsToxic Chemicals


Resource Conservation and Resource Conservation and Recovery Act.Recovery Act.Authorizes the EPA to issue regulations for Authorizes the EPA to issue regulations for

the monitoring, transporting, storage, the monitoring, transporting, storage, treatment, and disposal of hazardous treatment, and disposal of hazardous substances.substances.

Hazardous Waste DisposalHazardous Waste Disposal


CERCLA - SuperfundCERCLA - Superfund Designed to ensure the Designed to ensure the

clean-up of hazardous clean-up of hazardous waste sites and to assign waste sites and to assign liability for the costs of the liability for the costs of the cleanup operations.cleanup operations.

Joint and Several Liability for Joint and Several Liability for cleanup costs can be cleanup costs can be assigned to any assigned to any potentially potentially responsible partyresponsible party (PRP). (PRP).

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