From: Black Unicorn <unicorn@access.digex.net>
Date: Tue, 19 Apr 94 15:56:08 PDT
To: jims@Central.KeyWest.MPGN.COM
Subject: Re: Warrantless searches -- A sign of things to come?
Message-ID: <199404192255.AA22833@access3.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


  Are there any lawyers that can comment with certainty?  I'm not qualified
  to answer this point.  (I did post since it was my original point that
  is being referred to.  My opinion is that a landlord can not further limit
  that which the state laws protect... but that is opinion)
 
 
<-
 
The test to distinguish a Leasehold from a License is whether the
control exercised by the occupant over the premises is so great
as to make the occupant a tenant, or so small as to make the
occupant a licensee.
Key factor inculudes the intent of the parties in determining
the the consequences of the landlord tennant relationship.
_Cook v. University Plaza_, 427 N.E.2d 405 (Ill. 1981).
The intent is usually determined by the language of the agreement
and the focus is on certain key words that estlablish a leasehold.
 
ONLY A TENANT HAS A POSSESSORY INTEREST IN THE LAND.
Thus: Only a tenant can bring actions like ejectment, tresspass,
nusiance.
 
One should note that arguebly the Fair Housing Act does not kick
in until one has a possessory interest in the land and the relationship
can be characterized as a landlord tennant one.
 
Private clubs, dwellings for religious purposes and others are
exempt from the act.
 
Public housing commissions may adopt "desirability standards" to
determine elgibility, but this right stops short of discrimination
even to the extent that criminal records, while they may go to
desireability, may not be used as a bar from public housing.
_Manigo v. New York City Housing Authority_, 51 Misc. 2d 829 (1966).
 
There is upon the tenant a duty not to use the premises for
Illegal purposes.  (Gambling, prostitution etc.)
Argueably this might include violations of the Chicago handgun
laws, but the connection between possession of a handgun and
the use of the leasehold estate seem to me, thin.
 
At the very least, the presence of a leasehold brings about basic
protections and non-discrimination protections in particular into
existance.  The license that a student may hold upon a dorm
does not trigger such protections under landlord tenant law, although
remedies may exist elsewhere.
 
Because a leasehold is partly a conveyance and partly a contract,
the denial of the Right to possess firearms in general is unenforceable
in so far as it constitutes a infringement upon the constitutional
right.
 
Such a prohibition in a license agreement, while not per se legal
is at least not protected in the same way.

The move of property law to a theory of contract, that is the move to
allow the private parties of landlord and tennant to agree on issue
s normally separate from a housing agreement, does not enable the
tenant to give up certain rights.

"When owners grant rights of access to their property to others,
they are not unconditionally free to revoke such access."
40 Stan. L. Rev. 611 (1988).

"Property rights serve human values.  They are recognized to that end
and are limited by it.  Title to real property cannot include dominion
over the destiny of persons the owner permits to come upon the premises."
_State v. Shack_, 58 N.J. 297, 277 A.2d 369 (1971).

In so far as restrictions in a lease include rights that can be
estlablished by state or federal constitutions or other law, they
are unenforceable.

-uni- (Dark)