Interests in Land
Possessory Interests
A. Freehold Estates
B. Non-Freehold Estates
1. The Fee Simple Absolute
1.
The Estate for Years
2. The Defeasible Fees
2.
The Tenancy at Will
(a) The Fee Simple Determinable
3.
The Periodic Tenancy
(b) The Fee Simple Subject to a
Condition Subsequent
4.
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
1
Donald J. Weidner
NON-FREEHOLD ESTATES
• 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 (cont’d)
• 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
THE ESTATE FOR YEARS
• 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
THE ESTATE FOR YEARS (CONT’D)
• 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.
5
Donald J. Weidner
TENANCY AT WILL
• 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.
6
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 O’s land with O’s implied consent.
• Modern statutes typically require a period of notice—
say 30 days or a time period equal to the interval
between rent payments—in 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 will—arises by implication in most
jurisdictions .
7
Donald J. Weidner
PERIODIC TENANCY
• 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 term—through 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.
8
Donald J. Weidner
PERIODIC TENANCY (Cont’d)
• 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 (cont’d)
• 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 month’s 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
TENANT AT SUFFERANCE
• “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.
11
Donald J. Weidner
PROBLEMS at 446
• 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 L’s 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 L’s rights?
12
Donald J. Weidner
PROBLEMS at 447
• 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 (Cont’d)
• 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.
14
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.
15
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 LL’s 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 Owner’s estate (Garner) gave T
(Gerrish) notice to quit
– Which T ignored
• Executor filed a summary eviction proceeding
16
Donald J. Weidner
Garner v. Gerrish (cont’d)
• 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.”
17
Donald J. Weidner
Garner v. Gerrish (cont’d)
• 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.
18
Donald J. Weidner
Garner v. Gerrish (cont’d)
• 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
GARNER v. GERRISH (cont’d)
• 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
Problems
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 (LL’s)?
Does T have a determinable fee?
What if there is periodic rent paid?
-
Determinable term for years?
Determinable periodic tenancy?
21
Donald J. Weidner
Problems at 450
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.
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 (cont’d)
•
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
2/6/69
LL
5 year lease @ $1,250/month to end on 2/6/69
T’s new bldg. is not ready. Dispute about who said
what in negotiations between LL&T.
LL writes to T: You have no oral extension:
*
3/3/69
LL
4/6/69
LL
1.
“quit and vacate” at midnight, per lease.
2.
You are subject to payment of double rent for
any holdover.
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.
T
T
Held: this letter was an
effective election to
terminate the lease and
to treat the Ts as
trespassers.
T
T
*GENERAL RULE: “a TY from year to year is created by the T’s holding over after the
expiration of a term for years and the continued payment of the rent reserved…By remaining…a
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
LL
Tendered the premises for purposes of LL’s inventory
T
[presumably after vacating]
4/19/69 LL
LL’s lawyer writes, electing to renew for a new 5-year
T
term [2 ½ months after the expiration of the lease]
4/7/69
Crechale
(Cont’d)
[A Year Passes]
5/15/70 LL
5/27/70 LL
Pay past due rent or vacate.
T
Tendered the keys.
T
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 (cont’d)
• Consider the Court’s 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.”
27
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 plaintiff’s
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 (cont’d)
•
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 (cont’d)
• 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.)”
30
Donald J. Weidner
Welk v. Bidwell (cont’d)
“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….”
31
Donald J. Weidner
Welk v. Bidwell (cont’d)
• 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.”
32
Donald J. Weidner
Welk v. Bidwell (cont’d)
• 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
33
Donald J. Weidner
Welk v. Bidwell (cont’d)
• 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 B’s department store;
- T is allowed to farm B’s land, the consideration being
that A will share the crops with B;
- T rents a room for 2 months in B’s rustic country inn;
- T works for B and is given a room in B’s house as partial
compensation.
35
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.
36
Donald J. Weidner
ARTHUR TREACHER’S FISH &
CHIPS OF FAIRFAX v. CHILLUM
TERRACE LLP
March 25, 1971
“LL”
(LPP)
“Lease Agreement”
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.
37
“T”
T’s president,
who signed
the lease,
was a lawyer
who
specialized in
real estate.
Donald J. Weidner
Arthur Treacher’s (cont’d)
•
•
T breached. The question was not liability—the
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.
– Don’t 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
COOK v. UNIVERSITY PLAZA
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 another’s 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 lessee’s 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...."
41
Donald J. Weidner
Slave Codes (cont’d)
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.
42
Donald J. Weidner
Slave Codes (cont’d)
• 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 (cont’d)
– 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
1791
• The Fifth Amendment to the United States
Constitution provides, in part:
– No person shall...be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use without
just compensation.
45
Donald J. Weidner
1850
• 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:
46
Donald J. Weidner
Roberts v. City of Boston (cont’d)
– 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
1857
• 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.
48
Donald J. Weidner
Dred Scott (cont’d)
• “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 (cont’d)
“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 (cont’d)
“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 (cont’d)
“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 (cont’d)
“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
1863
•
Emancipation proclamation.
1865
• 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.”
54
Donald J. Weidner
13th Amendment (cont’d)
– “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.
55
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 (cont’d)
• 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. It57 provided:
Donald J. Weidner
The Black Codes and the Civil Rights
Act of 1866 (cont’d)
– "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 Cont’d
• 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
Johnson’s view, sufficiently related to abolition to fall within
the power of Congress under section 2.
59
Donald J. Weidner
The Black Codes and the Civil Rights
Act of 1866 (cont’d)
• 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 (cont’d)
• 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
1868
• 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.
62
Donald J. Weidner
1868 Cont’d
– 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 Court’s [1948]
decision in Shelley v. Kramer [see below]
effectively eliminated at least some private
discrimination as well.”
63
Donald J. Weidner
1870
• 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.
64
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
1883
• 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.
66
Donald J. Weidner
Civil Rights Cases (cont’d)
"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
1896
• 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.”
68
Donald J. Weidner
Plessy v. Ferguson (cont’d)
• “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
1917
• 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.”
70
Donald J. Weidner
1926
• 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
1948
• 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."
72
Donald J. Weidner
Shelley v. Kraemer (cont’d)
• 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.”
73
Donald J. Weidner
Shelley v. Kraemer (cont’d)
• 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 (cont’d)
• “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
75
Donald J. Weidner
Shelley v. Kraemer (cont’d)
• “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 (cont’d)
• 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
1968
• The federal Fair Housing Act was originally
adopted in 1968.
– It has subsequently been amended several times.
78
Donald J. Weidner
1968 (cont’d)
• 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.”
79
Donald J. Weidner
Jones v. Alfred H. Mayer (cont’d)
• 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 (cont’d)
• 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 (cont’d)
• "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 owner’s
residence.
83
Donald J. Weidner
Fair Housing Act (cont’d)
• 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.
85
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?
86
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?
87
Donald J. Weidner
Hannan v. Dusch (cont’d)
• 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.
88
Donald J. Weidner
Hannan v. Dusch (cont’d)
• 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 (cont’d)
• 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?
90
Donald J. Weidner