Sum and Substance Quick Review on Property
Author:
Juergensmeyer, Julian Conrad
Edition:
5th
Copyright Date:
2012
23 chapters
have results for property
Chapter III. The Law of Personal Property 44 results (showing 5 best matches)
- Not long ago, most law schools had two separate courses called “Personal Property Law” or “Chattels” and “Real Property Law.” It became popular to merge these courses and rename the unified course, “Property.” Over time, less and less of the property course is focused on personal property rules and principles. Some courses omit personal property altogether or merely use minimal personal property concepts and cases (e.g., cases concerning chasing wild animals or finding jewels) as a way of introducing the concepts of ownership and possession. Check carefully the coverage of your property course to ascertain the extent to which you are responsible for personal property law.
- The subject matter of personal property courses is now most regularly covered within other substantive law school courses. Thus, for example, the most common method of transferring the ownership of personal property is the sale. The law relating to sales is covered in contracts and commercial law courses. Personal property law today is a collection of miscellany, covering only those elements of personal property law not covered elsewhere. The coverage which follows in this concentrates on those personal property topics generally used as introductions to the study of property law.
- In a broad sense, personal property is all property not classified as real property, (i.e., land and most, but not all, interests in land). Personal property can be tangible (e.g., a car, books, furniture) or intangible (e.g., stocks, bonds, bank accounts, copyrights). Tangible personal property can be classified as consumable—that which is “used-up” or worn out by normal use (e.g., strawberries, perfume) or non-consumable (e.g., a painting, a yacht). Personal property is fungible if, by nature or agreement, one unit is considered the equivalent of any other unit (e.g., kernels of corn).
- Chattels is the old common law word for personal property. Today, it is used interchangeably with personal property. It probably came from the Latin word for cattle and livestock, which at one time were a major item of personal property. Personal property or chattels are also sometimes referred to as “movables” to distinguish them from land and most interests in land, which are referred to as “immoveables.” “Goods” is another term commonly used to refer to tangible items of personal property.
- Goods are abandoned when the owner throws away or leaves her property with the specific intention of permanently giving up all rights to that property. A chattel may also be abandoned when it has been lost and the owner has given up all intention and effort to recover it. While ownership rights in chattels may be extinguished by abandonment, real property cannot be “abandoned” for purposes of either terminating the owner’s title or transferring the owner’s title. [Note that, at least in theory, ownership of real property cannot be abandoned.]
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Chapter II. An Overview of the Study of Property Law 33 results (showing 5 best matches)
- In our common law system the rules and concepts relating to the ownership and use of land (Real Property) developed very differently from those relating to the use and ownership of “things other than land” (Personal Property or Chattels). Until relatively recently, this difference was reflected in the course offerings of many law schools by the existence of a separate course concerning Personal Property or Chattels. Today, many property professors and casebooks include some coverage of personal property even when the course and/or the casebook are titled Real Property. Thanks to recent reforms, the more difficult issues regarding personal property tend to be covered in contracts and commercial transactions courses. Be attentive to your professor’s coverage in the basic property course in this regard. The portions of personal property law most likely to be covered in property courses are generally treated as introductory material so they are placed at the beginning of the
- Of course not all of our current property law can be traced back to the early common law, and many of the old common law doctrines have been changed or even abolished by recently enacted statutes. The important thing for the student to realize is that in spite of the modern changes by statute or judicial decision, there has never been a comprehensive revision of the basic concepts of property law in our American common law system, so that the “old” law applies unless there is a specific change in the jurisdiction in question. Many of these changes will be emphasized throughout your property course(s). The property law of some states has been changed much more than that of others. In fact, it is hard to find a common law real property concept that does not still exist in some jurisdiction.
- The important point to note is that the rules of property law, much more so than the areas of law studied in other first year courses, are still grounded in the old common law. It is perhaps because of this that the Restatement of Property is controversial (some say it changes too much and others that it changes too little) and not nearly as important as the Restatement of Torts or Restatement of Contracts. (The Restatement of Property, like the other Restatements, is published by the American Law Institute, a respected group of law professors, judges, and practicing lawyers. Its purpose is to explicate the law of property as expounded by enlightened courts.) Courts are more likely to be concerned with old treatises and judicial interpretations of common law property concepts than with modern attempts to restate or reform this body of law.
- 1. Property I which generally includes coverage of some personal property concepts, the historical development of ownership concepts, freehold estates, future interests, concurrent estates, and marital property interests; and
- The subject, Property, contains several distinct areas of law. In many law schools, Property is broken into two courses:
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Chapter V. Estates in Land [Freeholds] 31 results (showing 5 best matches)
- Originally in our common law system, the concept of “estates” was applied only to ownership of land. Personal property or chattels were owned absolutely and directly. Personal property “ownership” was similar (if not identical to) the King’s allodial ownership of land. Because personal property was not subjected to tenure or the concept of seisin, (§ 5–5), there was never any need or basis for projecting ownership on to an imaginary plane of time and describing the owner’s rights in terms of the duration of a possessory right. (§ 5–1) Nonetheless, we common law lawyers have become so enamored of our estates concepts that—for better or worse—it is more and more common to find references to “estates in personal property.” At least some judges believe that personal property can be owned in fee simple absolute, fee simple determinable, or fee simple defeasible upon condition subsequent. Recognition of “life estates” has become common for tangible and non-consumable personal property...
- The tenancy for years, periodic tenancy, and tenancy at will are characterized as the non-freehold (i.e., leasehold) estates, and are discussed in depth in Chapter VIII (Landlord And Tenant Law). Traditionally, in property law, the distinction between freehold and non-freehold estates was significant. For example, non-freehold estates were classified as “chattels real” and passed on at the death of their owner as personal property rather than as real property.
- A life tenant, one who is in possession of property through a life estate, is entitled to make all normal uses of the land and to take the profit from such use. Unlike the holder of a fee, however, the holder of a life estate must accommodate his rights to those of a future estate holder (either a reversioner or a remainderman). The presence of a future estate prevents the holder of the life estate from using the property in a wasteful manner.
- The life tenant’s primary duties with respect to maintenance of the property are to make repairs necessary to avoid diminishing the value of the property and to refrain from committing any act which would have the effect of diminishing the value of the property. These duties are expressed as the duty to avoid waste. If a life tenant violates this duty, waste is a basis for recovery of damages or for injunctive relief by the remainderman or reversioner. The life tenant is not required to rebuild in the case of destruction by fire or storm when rebuilding rather than repairing is necessary in order to restore the property. See Chapter VIII (Landlord And Tenant Law (Non–Freehold Estates)), § 8–1.
- A, owner of a fee simple absolute, conveys Blackacre “to B and her heirs for so long as the property is used as a school and when it is no longer so used, the property shall revert to A.” The limits set on the use of the property “as a school” and the words of termination (“so long as … and
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Chapter XVI. Public Land Use Control 31 results (showing 5 best matches)
- Property owners bringing facial takings claims are not subject to the ripeness doctrine because, by definition, the property owner is alleging that the mere enactment of the law, not the law’s application to the property owner, results in a taking of the property. Neither are physical invasions subject to the ripeness doctrine because the scope of the taking is established by the physical taking itself. Thus, as-applied, regulatory takings actions require ripeness.
- At the current time, the most severe limitations placed on the use of land come not from the many property law concepts discussed up to this point but from the exercise, by myriad government entities, of their police power based land use regulatory authority and their exercise of their power of eminent domain. These interrelated topics are considered in depth in land use planning and control law courses but many real property casebooks and professors attempt an overview of these subject areas in the basic property course. Consequently, such an overview is included as the final topic in this Quick Review.
- Fair market value is the amount of money a willing buyer, under no compulsion to buy, would pay and a willing seller, under no compulsion to sell, would accept for the property in question with the intention of devoting the property to its highest and best economic use.
- The fact that a land use restriction prevents a landowner from making the highest and best economic use of his property does not constitute a “taking” as long as an economically meaningful use of the property is still permitted.
- § 16–80; (2) geographic whether horizontal (i.e. the subdivision of property) or vertical (i.e. division into subsurface, surface and air rights); or (3) conceptual such as when a stick in the bundle of property rights is taken (i.e. the taking of the right to exclude by condemning an easement). When measuring the amount of the economic impact of a regulation one first must determine the nature and extent of the property interest, before the regulation, this is the denominator. Next, one must determine what has been taken by the regulation, this is the numerator. If the denominator is large relative to the numerator in the takings equation, then the impact of the regulation will appear to be small and the likelihood that a compensable taking will be found under the ...is small relative to the numerator, then the impact of the regulation on the property interest would appear to be great and the likelihood that a compensable taking will be found is increased. Thus, the segmentation...
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Chapter XI. Adverse Possession 20 results (showing 5 best matches)
- “Hostility” generally means that the possession must be non-permissive (e.g., the possession of a bailee does not start the running of the statute until the bailee refuses to redeliver). This is one area in which adverse possession of personal property differs somewhat from adverse possession of real property. Generally, a thief can never acquire title to personal property nor can a thief convey title to stolen personal property to a purchaser.
- Originally, the concept of adverse possession applied only to land and was grounded in the real property concept of seisin. For better or worse, courts now generally apply not only the same concepts but most of the same rules to many items of personal property (chattels).
- The doctrine of adverse possession of personal property rests on the Statute of Limitations. When the owner is out of possession, and his action to recover possession is barred by the statute, the possessor becomes the owner. The Statute of Limitations for damages or recovery of personal property varies from state to state. In most states it is six years or less, although it may be as long as ten years.
- The adverse possessor must take actual possession of a type that would give the owner a cause of action in replevin (for return of the personal property) or in detinue (to recover the value of the personal property).
- The requirement that possession, to ripen into ownership, must be open and notorious, has presented peculiar problems in dealing with personal property. In cases involving land, an owner can be charged with notice of the fact that another is in possession of his land; he knows where his land is, and it can be neither moved nor concealed. Personal property, however, can be moved and can be concealed.
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Chapter XII. Land Sales Contracts 17 results (showing 5 best matches)
- Under the doctrine of equitable conversion, the vendee (buyer) under an enforceable contract for the sale of realty is regarded in equity as the beneficial owner from the date of the contract and thus has the equitable title to the property. The vendor (seller) has the legal title to the property, until title is transferred by deed, but holds the legal title as trustee for the buyer. The buyer’s interest is treated as a real property interest, a right to receive title to the property, and the seller’s interest is treated as a personal property interest, a right to the balance of the purchase price. As a result, the common law placed the risk of loss from casualty occurring during the existence of the sales contract on the buyer. The result of this doctrine was to allow a seller to specifically enforce a land sales contract against a buyer even after the contracted-for improvements (buildings) were destroyed. (See Case Squib:
- . Foreclosure is the process by which the mortgagee asserts its security interest and obtains repayment when a mortgagor defaults. The mortgagee cuts off the mortgagor’s equity of redemption by holding a public sale of the property, conveying title to the property to the purchaser at the sale and applying the sales proceeds to satisfy the outstanding debt owed to the mortgagee. There are three types of foreclosure, judicial foreclosure, power of sale foreclosure, and strict foreclosure. Judicial foreclosure, as its name indicates, involves a lawsuit and judicial oversight. Power of sale foreclosure allows sale of the property by the mortgagee without court supervision. All states provide for judicial foreclosure. Not all states allow power of sale foreclosure and in those states that do allow power of sale foreclosure, many require that the right of power of sale foreclosure must be expressly stated in the mortgage. Strict foreclosure is a foreclosure without a sale of the property....
- Both seller and buyer have an insurable interest in property subject to a sales contract. A pragmatic decision would be that if the seller has insured and the buyer has not insured and if the improvements on the property are destroyed prior to closing, the seller may compel the buyer to perform the contract but the buyer is entitled to the benefit of the insurance proceeds as the insurance proceeds are deemed to take the place of a destroyed building. The result is that the buyer is entitled to a deduction against the sales price to the extent of the insurance proceeds on completing the purchase of the real estate. Recent decisions point in this direction.
- The mortgagor’s interest after the mortgage is executed is the equity. The equity is the difference between the market value of a piece of property and the current balance due on the mortgage loan (i.e., the actual value “owned” by the mortgagor, free and clear of the mortgagee’s interest). After a default by the mortgagor, the mortgagor still has the right to redeem the property and save his equity by paying the amount due; this is called the equity of redemption. The equity of redemption continues until it is cut off by a foreclosure sale.
- A good example of performance adequate to remove any Statute of Frauds challenge can be seen from the following events: after an oral land sales agreement is reached but before closing occurs, a buyer (1) takes possession of the property, and (2) pays the full contract price or makes substantial improvements.
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Chapter XVIII. Practice Essay Questions and Suggested Answers 77 results (showing 5 best matches)
- The plaintiff purchased the property with the intent to subdivide it into two parcels. The property was legally capable of being subdivided into two parcels under the Norwalk planning, zoning, and subdivision regulations. The plaintiff submitted a subdivision application. The Norwalk Conservation Commission and the Norwalk Zoning Commission approved the application but before the final subdivision map was filed, certain neighbors of the property told the plaintiff about the restrictions contained in the 1955 executor’s deed. The neighbors’ properties were similarly restricted and the restrictions on the neighbors’ properties and on the plaintiff’s property were put in place by their common developer at the time of conveyance.
- The plaintiff obtained a copy of the 1955 executor’s deed, reviewed the restrictions, and thereafter ceased all efforts to subdivide the property based on a threat of a lawsuit from neighboring property owners. The plaintiff would not have purchased the property for $260,000 had she known about the restrictions in the 1955 executor’s deed.
- . No action for recovery or possession of real property shall be maintained when the person in possession thereof, or defendant in the action, or those under whom he claims, has possessed the property adversely to all other persons for twenty years; and such possession, so held, gives a title in fee to the possessor, in such property, against all persons not under disability.
- At common law, one could not create a fee tail estate in personal property. Despite the statute converting a fee tail into a life estate with a fee simple in the remaindermen, the court will likely find that the legislature did not intend to simultaneously create and destroy a new type of property interest. Therefore, the court will probably allow the personal property to descend as it would have in absence of the statute.
- The plaintiff has the better position based upon clear breach of a deed warranty. In this case the right of neighboring property owners having the same restrictions in their chains of title would be the third parties having a claim, right, or interest to block subdivision of the property and would cause a diminution of its value as compared to subdividable property. So, plaintiff can demonstrate breach of a deed warranty and damages.
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Chapter VIII. Landlord and Tenant Law (Non–Freehold Estates) 37 results (showing 5 best matches)
- A fixture is something which was originally a chattel (personal property), but which, by reason of its annexation to, or use in connection with land, is regarded as a part of real property. The treatment of a thing as a fixture is relevant to several areas of real property law but most fixtures problems these days arise in connection with landlord and tenant law.
- has led to a “property,” rather than a “contract,” approach to leases. As will be discussed in detail throughout this chapter once the original estates aspects of leases has been explained, the current trend is to replace the old property law rules applied to leases with contract concepts. The student should be forewarned at this point of the most significant differences between the property law and contract law approaches to leases:
- Normally, a fixture passes with the property to which it is annexed, when that property passes by deed, will, or descent. For example, O owns
- Even before coming to law school, nearly every law student is familiar with the law of landlord and tenant—or the law of leases, as it is also called. Most people today think primarily of the contract-type relationship which it establishes and may be surprised to encounter it as a topic in property law, but originally landlord and tenant arrangements were primarily a means of creating an ownership interest in real property, called a non-freehold estate, with relatively minor contract-type characteristics. In fact, the original purpose of non-freehold estates may have been to create security interests—somewhat equivalent to modern mortgages—rather than to provide housing. To fully understand the current dynamic state of this area of property law, it is necessary to examine its origins in estates in land concepts. Landlords and tenants are also known as lessors and lessees, and the terms may be used interchangeably in this chapter.
- Ameliorating waste is conduct by the tenant substantially altering the leased premises so that the freehold estate is permanently changed. The term “waste” can be misleading, because the land’s value is increased (e.g., replacing an old structure with a new one; converting farmland into an industrial park or residential subdivision; cementing part of property for a parking lot). Such conduct was strictly prohibited by the old common law, even where the changes enhanced the value of the property. The theory was that the landlord has the right to receive the property back in the same form as when leased. However, because of the hardships which arose in areas of rapid industrialization, most courts have come to permit beneficial structural changes, when long-term leases are involved, although the tenant may still be liable for increases in taxes or insurance generated by his changes.
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Chapter XIX. Case Squibs 69 results (showing 5 best matches)
- 105 Ill.2d 215, 85 Ill.Dec. 331, 473 N.E.2d 930 (1984). Two brothers were joint tenants in a piece of property. One brother, John, cosigned a note for a friend and gave the creditor a mortgage on his undivided interest in the property. The other brother, William, knew nothing about the mortgage. John died and left all of his property to the friend. The first issue was whether the mortgage severed the joint tenancy and destroyed the right of survivorship. The court held that the mortgage did not sever the joint tenancy, therefore William took title to the entire estate at John’s death. The second issue was whether the mortgage was still operative against the property. The court held that because the mortgage accompanied the mortgaging tenant’s interest, it was extinguished when his interest in the property ceased to exist—at his death.
- 458 U.S. 419 (1982). A New York statute authorized cable television companies to install cable and other transmission equipment (wires, boxes, bolts, plates and screws) on private rental properties, even over the objection of the property owner. The court held that “any permanent physical occupation” of property, no matter how minor, is a taking. The right to exclude was held to be absolute; not subject to the balancing test often used to limit other rights associated with the ownership of property. By way of the Taking Clause, this ruling fortified the property owner’s right to exclude others from his property, no matter how minor the intrusion.
- 533 U.S. 606 (2001). Palazzolo invested in beachfront property by creating a corporation, which purchased the property. While the corporation owned the property, Rhode Island enacted environmental regulations that affected the property. After these regulations were in effect, the property was transferred from the corporation to Palazzolo. Over the years, Palazzolo and the corporation attempted, to no avail, on multiple occasions to gain governmental approval for a fill permit on the property. The State argued that the regulations did not constitute a taking because Palazzolo’s claim was not ripe, and he had no right to challenge regulations placed on the land before he obtained title. The Supreme Court disagreed holding that the claim was ripe because the agency did not have discretion to permit any development, and therefore, the permissible uses of the property were known to a reasonable degree of certainty. Further, the court found that Palazzolo did have the right to challenge...
- 11 East 574, 103 Eng.Rep. 1127 (Q.B. 1707). P owned a meadow and built a duck decoy pond to attract ducks to his property for hunting purposes. D, another duck hunter, repeatedly fired a gun to scare the ducks from P’s property. The court held that D unlawfully interfered with P’s lawful use of his property. Of particular importance was the fact that D was interfering with P’s employment.
- 130 S. Ct. 2592 (2010). Affected littoral property owners sued, challenging the validity of the Florida Beach and Shore Preservation Act (the Act). Under the Act, beaches that had been critically eroded by hurricanes could be renourished by placing large amounts of sand on these beaches. The sand would be placed seaward and landward of the dividing line separating publicly-owned beaches from privately-owned property. Owners of littoral property argued that the Act authorized the government to physically occupy their private property by the sand placement and that the Act also granted to the state of Florida title to the new strip of beach created by the renourishment. The United States Supreme Court affirmed the lower court’s decision that the Act did not, on its face, take the littoral rights of upland property owners without just compensation. The Court cited background principles of Florida’s state property law that: (1) permitted the state to fill state-owned submerged land...
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Chapter X. Covenants Running With the Land and Equitable Servitudes 34 results (showing 5 best matches)
- As discussed above, the need for covenants grows out of the practical problem that many landowners faced in trying to protect property from inappropriate uses of neighboring property prior to the development of a public land use control system. Ironically, real covenants and their liberalized version, equitable servitudes, continue to be used today in conjunction with public land use regulations. The classic situation is the developer of a residential subdivision who wants to make the development attractive to people who wish to purchase or lease the properties. The prospective buyers may want to know, indeed they will often demand, that surrounding land will not be put to uses that adversely affect the value of their property. While other devices may effectively control land usage (e.g., defeasible fees or public zoning restrictions), real covenants are a frequently used means as they lack the harshness of other private methods which normally involve a forfeiture of property (e.g....
- A burden is traditionally characterized by a promisor surrendering a portion of his legal interest in the property or making that legal interest less valuable to him. For example, A covenants (promises) to B that he will only use his property for a single family dwelling. Hence, A has agreed to encumber his property and thereby reduce his legal interest therein.
- The Restatement of Property takes a different position. It provides, subject to certain exceptions, that if a covenant meets all of the requirements for it to run with the land, then its burdens and benefits run to adverse possessors. Clearly, not all courts follow the Restatement of Property so you should be aware of the differences in treatment.
- A benefit is traditionally characterized by an agreement whereby the value of the land owned by the covenantee or land in which the covenantee has an interest is enhanced. For example, A, the lessee, covenants to B, the lessor, that he will paint the fence on the leased property every third month. B has a legal interest in the property; hence, A has agreed to confer a benefit upon B since the maintenance of the property will enhance its value.
- A lake covers a portion of both A and B’s property. B covenants to pay a share of A’s costs of maintaining a dam on A’s property to control the level of the lake for the benefit of A and B. Though there was no privity of estate between A and B, A’s successor C may enforce the covenant to pay the share of costs against B.
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Chapter VI. Future Interests 34 results (showing 5 best matches)
- As noted earlier (§ 5–95), originally, in our common law system, the concept of estates and therefore future interests were applied only to ownership of land. Personal property or chattels were owned absolutely and directly. Personal property “ownership” was similar if not identical to the King’s allodial (meaning free from the tenurial obligations attaching to feudal lands) ownership of land. Since personal property was not subjected to tenure or the concept of seisin, (§ 5–5), there was never any need or basis for projecting ownership on to an imaginary plane of time and describing the owner’s rights in terms of the duration of a possessory right. Nonetheless, we common law lawyers have become so enamored of our estates concepts that—for better or worse—it is more and more common to find references to “estates in personal property.” At least some judges believe that personal property can be owned in fee simple absolute, fee simple determinable, or fee simple upon condition...property
- A power of appointment is an authorization given by a property owner (called the donor) to another (called the donee) to determine the transferees of the property (called the appointees) and the shares which they take (e.g., O conveys “to A for life, then to such persons as B shall select,” B has a general power of appointment).
- In the absence of a gift in default, the property generally belongs to the donor of the power (or his estate). However, under some circumstances where the donee has clearly attempted to exercise the power in the donee’s will, but his appointment was invalid (i.e., it violated the Rule Against Perpetuities), the property goes to the donee’s estate.
- In the absence of such a gift in default of the power, the appointive assets go in equal shares to living members of the designated class, unless the instrument creating the power indicates that the property shall not go to the appointive donees if the power is not exercised. In the latter case, the property remains in the grantor or his estate.
- Absent a statutory provision, a donee’s creditors typically cannot reach an unexercised power of appointment. Courts have held that the power of appointment is not property; the exercise of the power is personal to the donee. While the creditors of the donee of a special power cannot reach the appointive assets, the holder of a general power may be treated, to a limited extent, as owner of the appointive assets, and thus subject to claims of his creditors. If the donee exercises a general power by will in favor of a creditor or volunteer and dies insolvent, his creditors can reach appointed property to satisfy their claims. If the donee of a presently exercisable general power exercises his power inter vivos, his creditors can reach the appointed property if the appointment is fraudulent as to them. If the donee of a presently exercisable interest becomes bankrupt, the trustee in bankruptcy can reach property subject to the power.
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Chapter XIII. Deeds 14 results (showing 5 best matches)
- Suppose O delivers a deed to Blackacre, absolute on its face, to A, telling A that the property is his if O fails to return from a hazardous journey which she is about to undertake. O takes the journey and returns. A insists the property belongs to him. To what extent will a court give effect to parol conditions (oral conditions) attached at the time of delivery?
- The doctrine will not be used to defeat intervening BFPs, mortgagees, or third parties whose claims were known to the grantee before performance of the conditions. But note that if the deed in the grantee’s name is properly recorded when placed in escrow, there will be no BFP because the recording of the deed will give record notice of the grantee’s interest in the property. Thus, the claims of an intervening third party which have attached to the property during the escrow period may be cut off if the intervening third party had notice of the grantee’s interest.
- The deed should identify with reasonable clarity the grantor, the grantee, the property involved, and the estate or interest which is to pass. If the parties or the land itself cannot be determined from the deed, the deed may be void for uncertainty. If no estate or interest is defined, it will be presumed that the grantor conveys whatever interest he has.
- The deed need not recite consideration, for consideration is not necessary for a valid deed. Property may be conveyed as a gift.
- There is perhaps no more common kind of property dispute than the argument over boundaries. The starting point for their resolution is the description in the deed. Relevant doctrines used in resolving boundary disputes are:
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Chapter XV. Right to Use and Enjoymentof Property 13 results (showing 5 best matches)
- A landowner has the right to use her property without unreasonable interference by neighbors. Additionally, one of the miscellaneous rights of a landowner is to have her land supported in its natural state by neighboring land. Although the principles covered in this section are taken largely from tort law, they are sometimes covered in property courses, in order to give the fullest possible picture of a landowner’s rights.
- Merely showing that an adjacent use has lowered a plaintiff’s property value will not be sufficient to constitute a nuisance. However, depreciation of property value combined with other interferences may be enough for a court to find a nuisance.
- Trespass requires a physical invasion onto the plaintiff’s property. However, a nuisance only requires an unreasonable interference with the plaintiff’s use of her property, which does not require a physical invasion. Certain conduct can create both a nuisance and constitute trespass (e.g., large particle air pollution such as soot).
- A private nuisance is a situation or conduct that creates an unreasonable, substantial interference with the plaintiff’s use or enjoyment of her property. The gravity of harm from the defendant’s conduct must outweigh the utility of the defendant’s conduct for the court to find liability for nuisance. Factors a court will weigh in making this determination include the use being made of the plaintiff’s property, the use being made of the defendant’s property, the suitability of the conduct to the character of the neighborhood, the social value of the competing land uses, the ability of the parties to avoid or prevent the damages, and the overall extent and nature of the harm. The question of whether conduct is unreasonable or creates a substantial interference with another’s use and enjoyment of her property is a question of both fact and law. Courts will often articulate different tests to measure unreasonableness, for instance, so you should be aware of this area as one that is...
- Generally, zoning ordinances are admissible to show that the public views the use as reasonable. However, it is not determinative of the issue if the defendant can show her use is consistent with zoning ordinances, because under the particular circumstances this use might still be a nuisance to adjacent property owners.
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Chapter IX. Easements, Profits and Licenses 10 results (showing 5 best matches)
- A license coupled with an interest is a license in which the licensor consents to the placing of personal property (chattel) of the licensee on his land or the licensee has purchased personal property of the licensor that is located on the licensor’s land, and where the exercise of the license is necessary in order for the licensee to make use of his personal property. On occasion, a license may be coupled with a grant of a more durable interest in the property (e.g., the right to build a pier and rent boats on O’s lake). In either of these cases, the license may be held to be irrevocable so long as the interest lasts. For example, if B sells A a herd of cattle that are located on B’s land, B has impliedly given A a license to go onto B’s land to remove the cattle.
- An easement (and a profit, as we shall see later) is distinguishable from an estate in land (which is discussed in Chapter V (Estates In Land)). Thus far, the estates in land we have covered have been possessory interests (i.e., their owner (or their successors in interest) is or may be entitled to take possession of the property). Easements and profits are conceptually different from estates in land because they are not capable of becoming possessory. They give the holder the right to use or restrict the use of the land that is burdened by the easement, without the right to take possession of the land. (Note: Sometimes it can be difficult to distinguish use rights from possessory interests. Just remember that the strength of common law property
- According to most but not all courts, an easement implied from necessity continues only so long as the strict necessity continues to exist. Thus, if in the above example a new highway is constructed adjacent to X’s parcel of land, the easement implied from necessity is terminated and X loses her right of way over O’s property.
- Once the license has been revoked, the licensee is given a reasonable time to remove herself and her property from the licensor’s land.
- Continuity is a question which often must be considered on a case by case basis, taking into account the nature of the use and the nature of the property. For example, A and B own adjacent lots with summer cottages on them in a resort area. The cottages are vacant except for the period from May through September. Every summer for twenty years, A has used a strip of B’s land as his regular means of access to his cottage. Such use would probably be held continuous.
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Chapter XIV. Recording Acts 13 results (showing 5 best matches)
- A party in possession of the property is deemed to have given all other parties notice of their claim to the property under many marketable record title acts.
- Recording acts have two functions. First, the recording acts establish priority rules to resolve title disputes which can arise in different contexts such as, for example, when a landowner, either by mistake or intention, conveys the same piece of property to two or more successive grantees or when a landowner conveys an interest in the same property to two or more successive creditors (such as by mortgage or deed of trust). This is the so-called “priorities” aspects of the acts. Second, the recording acts establish land records offices for the public recording of documents which affect the title to land. Each state is responsible for maintaining records of title to land for the land within the state. Most states organize their land title records on a county-by-county basis. There is no federal recording system and the federal government does not maintain land title records.
- The interests in real property that law students most commonly encounter in the context of the recording acts are deeds, easements, covenants, mortgages (and deeds of trust), leases, and liens.
- A statute of the notice type provides in abbreviated form: “No conveyance, transfer or mortgage of real property shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded.”
- Recording begins when the grantee presents his deed to the recorder for the county in which the property is located. The instrument is copied, usually
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Chapter IV. Fragmentation of Ownership: The Development of Tenure 7 results (showing 5 best matches)
- If a tenant holder died without heirs, the right of possession of the land returned to the king. The concept of escheat exists still today since the real property of those who die without heirs or devisees goes to the State or entities designated by State Legislatures as recipients of such property.
- A. ORIGIN OF COMMON LAW REAL PROPERTY OWNERSHIP. [§ 4–1]
- William, or his advisors, decided to pay his debts with his newly gained lands. Instead of following concepts of outright conveyances of land, William borrowed, but greatly modified, feudal concepts from his native Normandy and established a structure of land use and ownership rights which formed the basis for the establishment of English government and society and gave birth to our common law real property law.
- William not only paid his debts by creating tenure in regard to land but also extracted future services and payments. The types of services to be performed were the basis for categorizing the tenures. (Note: Neither the labels for the various tenures nor their spelling is uniform so do not be bothered by variations among the various property books.) The major tenures were:
- Upon the death of a tenure holder, his interest in the property was subjected to the right of the king or overlord to be guardian during the minority of the tenure holder’s heir (eldest son). Unlike modern guardianship, the Guardian got nearly all rents and profits of the land for his personal use. The king or overlord also had the right to sell the right to marry the heir of a tenant holder.
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Table of Contents 21 results (showing 5 best matches)
Chapter I. Introduction 11 results (showing 5 best matches)
- Most students study real property law and contracts law during the same semester(s). The relationship between these two key areas of our common law system has always been close and controversial. Today, the conflict is “heating up” and the landlordtenant and land sales contracts areas of property law are undergoing a revolution aimed at replacing many of the traditional property rules applicable in those areas with modern contracts rules and principles. Do not be surprised to discover the law in these two areas of the course in a great state of flux.
- Carol Necole Brown is a professor of law at the University of North Carolina at Chapel Hill, where she teaches Property Law, Land Use Planning and Control Law, Mortgage Law, Real Estate Finance, and Real Estate Transactions. Professor Brown earned her undergraduate (cum laude), J.D., and LL.M from Duke University. Professor Brown is the author of many articles and lectures on the Sum & Substance audio tapes on Property. She is a past chair of the Property Section of the American Association of Law Schools, chair of the Real Estate Transactions Section of the American Association of Law Schools, and is a member of the American College of Real Estate Lawyers. Professor Brown would like to thank her research assistant, Katherine Blass Asaro, for her invaluable assistance.
- Our common law system began in 1066 with the development of property law concepts following William the Conqueror’s victory at the Battle of Hastings. [Remember from your art history course seeing it depicted in the Bayeux Tapestries?] Not only did property law begin that long ago but many of the concepts you will study in this course have changed little since then. One of our more recent changes dates back to 1536, the Statute of Uses! See Chapter VI (Future Interests).
- Yes, there are some silly and tedious parts of the property course. But there are also some fascinating examples of intense human conflict behind some seemingly mundane rules and principles. Do not miss the opportunity that the study of real property law offers to see how our common law system developed and how the ever changing concepts of the proper role of private ownership have been dealt with by many generations of lawyers before you.
- Professor Julian Conrad Juergensmeyer holds the Ben F. Johnson, Jr. Chair in Law at Georgia State University and is an adjunct professor of planning at the Georgia Institute of Technology. He is also Professor of Law Emeritus at the University of Florida, where he taught property law for 30 years. Professor Juergensmeyer earned his undergraduate (summa cum laude) and J.D. (with honors and Order of the Coif) from Duke University. Professor Juergensmeyer is the author of nearly 100 books and articles on Property Law, Land Use Planning and Control Law, Environmental Law, Growth Management Law and Agricultural Law. He has also taught law at Duke, Tulane, Hastings, Indiana, and Louisiana State.
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Chapter VII. Concurrent Estates and Multiple Ownership 19 results (showing 5 best matches)
- The fragmentation of ownership of interests in real property through creating successive interests (i.e., present interests followed by future interests) was discussed in the previous chapter. Our common law system not only allows more than one person to own an interest in the same piece of property on a successive (one follows the other) basis, but also allows more than one person to own the same interest or estate at the same time—concurrently.
- A co-tenant in exclusive possession may be liable to his co-tenants for the reasonable rental value of his use under certain circumstances such as: (a) where the co-tenant has agreed to pay the other co-tenants for the exclusive possession and use of the property (i.e., the co-tenant makes a lease with the other co-tenants); or (b) if the co-tenant in possession has a fiduciary obligation to make productive use of the property as a result of a trustee or guardian relationship. (§ 7–41)
- A joint tenant or a tenant in common has a unilateral right to partition, which may be accomplished voluntarily (e.g., by exchange of deeds) or by court action. A tenant by the entirety does not have a unilateral right of partition. Partition means the property can be physically divided or the court may order that the property be sold and the proceeds divided. A partition action is an equitable action and the court has a wide range of devices for adjusting the equities of the co-tenants. Partition is thought to be the normal relief for co-tenants who can no longer agree.
- At common law, concurrent ownership was confined to the three concurrent estates discussed below. There was also once a fourth, coparceny, the tenancy for daughters when a decedent left no male heirs. It no longer exists. In addition, some view partnership as a concurrent ownership concept but, even if it technically belongs on the list, it is a subject for business organization courses, and not property law. Recent statutory enactments in most jurisdictions have expanded the possible ways for two or more people to own an interest in the same piece of property. These new statutorily created concurrent ownership concepts, of which condominium, cooperative, and timeshare ownership are the best examples, are usually referred to as “multiple ownership arrangements” to distinguish them from the traditional common law concurrent estates.
- There are three basic concurrent estates: (1) the joint tenancy; (2) the tenancy by the entirety; and (3) the tenancy in common. In each estate, holders have concurrent rights. The modern trend seems to be to recognize these concurrent ownership concepts in both personal and real property.
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Chapter XXI. Index 7 results (showing 5 best matches)
Title Page 1 result
- (B) Laura moves onto the premises and uses it as an office for the management of her rental properties.
- (D) regardless of intent, neither the benefit nor the burden can run because the law will not sanction any new and unusual property interests and the agreement does not constitute an easement.
- 34. “No conveyance, transfer or mortgage of real property shall be good and effectual in law or equity against subsequent purchasers for a valuable consideration and without notice unless the same be recorded according to law.”
- 36. “No conveyance of land shall be valid to pass any property as against lien creditors or purchasers for a valuable consideration from the donor or grantor but from the time of registration thereof.”
- Since Bob used words of limitation in the grant, he expressly granted less than a fee simple absolute to the University, and retained a future interest pursuant to which the property will automatically revert to him should the specified event (use for other than a law school site) occur. Such a future interest is a possibility of reverter. Answers A & B name other future interests. Option C is a non-existent interest.
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- Publication Date: May 1st, 2012
- ISBN: 9780314180957
- Subject: Property
- Series: Quick Reviews
- Type: Outlines
- Description: Comprehensive analysis of property law, convenient for class or exam preparation. Provides clear and concise explanations of legal concepts and terms, along with exam hints, strategies, mnemonics, charts, tables, and study tips. Includes self-testing and diagnostic review questions, and Case Squibs, which are capsule summaries of significant cases identifying important facts, primary issues and relevant law. Provides a Casebook Table, which keys to relevant pages of leading texts, and numerous essay and multiple choice questions with model answers and detailed expalnations. The 10-5-2 Hour Study Guide offers study suggestions in the critical hours before an exam.