Hornbook on the Law of Property: An Introductory Survey
Authors:
Hovenkamp, Herbert / Kurtz, Sheldon F. / Gallanis, Thomas P.
Edition:
6th
Copyright Date:
2014
27 chapters
have results for The Law of Property : an Introductory Survey
Preface 2 results
- This volume represents a thorough revision of the previously titled Survey of the Law of Property by Boyer, Hovenkamp & Kurtz. All cases and statutory law have been updated, and the material has been organized completely in a way to conform with the typical law school property curriculum. Much new material has been added, particularly in the “regulatory” aspects of property law. The book is designed to cover nearly all of the material encountered in the typical law school’s first year property law curriculum, plus some of the material covered in more advanced courses.
- Each chapter opens with a “summary,” or brief outline of the law encompassed under the title of that chapter. This outline, which cites relatively few cases, is designed to give the reader an overview of the rules in a particular area of law. Then follows a series of factually-based problems designed to force the property student to think about how these rules ought to be applied in a real life situation. Each problem is in turn followed by a short statement of the applicable law, and then by a lengthy analysis of the legal issues raised, likely outcomes, and up-to-date case citation of various views, as well as to commentators in the treatises and periodicals. Individual problems are designed to be intensive, in that they require close analysis of the particular legal rules under application. In the aggregate, the problems are also meant to be extensive, in that they cover most of the areas of interest and complexity pertaining to a given body of law.
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Chapter 10. Servitudes: Easements, Covenants, Equitable Servitudes 399 results (showing 5 best matches)
- Applicable Law:
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- 6. For our purposes, dealing only with real property, an equitable servitude will be considered as the equivalent of an “equitable easement.” This serves one of the interests of this chapter, which is to strive for a unified, or single, concept of servitudes.
- 10. By analogy to estates in land, an easement (or profit) is real property if its period of duration is either: (a) for an indefinite time, as a fee simple estate; or (b) for the life of a human being. An easement is personal property, a chattel real, if its period of duration is either: (c) for a specific time, such as an easement attached to a leasehold; or (d) from period to period like a leasehold from month to month. to speak of an “easement in fee simple absolute.” Rather, we use the term “easement in perpetuity” or “easement for life,” etc.
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Title Page 5 results
Chapter 7. Special Rules Governing Future Interests 230 results (showing 5 best matches)
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- Yes. The Doctrine of Worthier Title was historically a rule of law and not a rule of construction. At that time the remainder in a conveyance being in favor of the grantor’s heirs was void, and there was a reversion in the grantor. The grantor’s intention was immaterial. If the Doctrine were a rule of law, then the devisee, W, would be the owner of Blackacre and could not be ejected by H.
- 10. At common law the Doctrine was a rule of law, not a rule of construction; in modern law it sometimes has become a rule of construction. Thus, if the grantor intends to create a future interest in the grantor’s heirs, that interest can be valid. However, the presumption favors the application of the Doctrine and the grantor must use words in the deed to overcome the presumption and show an intent that the heirs take as purchasers.
- No. While the Rule in Shelley’s Case is one of law rather than one of construction, its application often involves the interpretation of the provisions of an instrument to see if the requirements of the Rule are satisfied. This particular problem presents one of the most difficult and most litigated questions concerning the application of the Rule.
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Chapter 5. Classifying Possessory Estates 281 results (showing 5 best matches)
- 2. A life estate is one in which the duration of the estate is measured by the life or lives of one or more human beings and is not otherwise terminable at a fixed or computable time. The typical life estate is for the life of the tenant. If someone other than the tenant is the measuring life, the life estate is called a life estate (or, in the simplified language of the Restatement Third of Property, a life estate for the life of another).
- After T’s death, W married H and later died intestate and without surviving issue. W and H had been in the possession of Blackacre, and after W died H continued in the possession of the property. A and B sue to eject H from Blackacre. May they succeed?
- At early common law under the feudal system the only way a freehold estate could be transferred in land was by the ceremony of “feoffment.” The owner (feoffor) went upon the land and made livery of seisin by handing the feoffee a twig or clod of earth symbolic of the land itself, at the same time describing in words the estate intended to be conveyed. The feoffor then walked off the land leaving the feoffee in possession and seised thereof. This method of conveyance is not used in the United States. Rather, conveyances are made by the delivery and acceptance of deeds. See Kurtz, Moynihan’s Introduction to the Law of Real Property 215–218 (5th ed. 2011). The feoffment ceremony is described in detail in 2 W. Blackstone, Commentaries on the Laws of England 315–316 (1765).
- Under T’s will, then, W was the donee of a fee tail estate in Blackacre which would descend to her bodily heirs, if any, and also was the beneficiary under the residuary clause of an undivided one third interest in the reversion left in T. Upon W’s death intestate without bodily issue, the estate tail came to an end and the reversionary interest which W owned descended to her surviving spouse, H, in accordance with the law of State Y. Thus, H is a tenant in common with A and B of Blackacre in which the unity of possession exists so that H’s possession is the possession of A and B as a matter of law. H, A, and B are tenants in common because of the law of State Y. Each tenant in common has the same right of possession as every other such tenant, and one cannot eject another. So A and B must fail in their suit against H.
- (a) At common law B took a life estate in Blackacre, but under the statute B takes a fee simple estate. At common law no conveyance could pass a fee simple from the grantor to the grantee without the use of the words of limitation “and his heirs.” Thus, even a conveyance to “B in fee simple absolute” gave B only a life estate.
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Chapter 16. Conveyancing by Deed 211 results (showing 5 best matches)
- In 1796 Congress adopted the rectangular system of surveys as the official method of land measurement in the United States. The principal units of this system used in land descriptions are townships, ranges, sections and subdivisions. Each regular township is six miles square and contains 36 sections. Each section is one mile square and contains 640 acres. Chart 1 below shows how the system is used in locating townships in any given state. Chart 2 shows the method of numbering the sections within any given township. Chart 3 shows how each section may be subdivided and the number of acres in each subdivision, and is followed by a description of such subdivisions. Federal survey lines are generally given the highest priority in cases of inconsistencies in deed descriptions.
- John, owner in fee simple of Blackacre, made a deed to Nancy as grantee and placed it in his safe deposit box in the bank where it was found upon John’s death. John’s will did not mention Blackacre but disposed of all the rest of his property. A dispute arose between Nancy and John’s heirs as to who was the owner of Blackacre. Who owns Blackacre?
- See Harris v. Woodard, 130 N.C. 580, 41 S.E. 790 (1902). Suppose, however, that the larger tract, Greenacre, is square in shape and the deed reads: “A one acre parcel located in the N.E. corner of Greenacre.” In this situation the description would be held adequate since the court would assume a square parcel was intended to be conveyed. Thus, by measuring equal lengths along the northern and eastern boundaries the requisite number of feet to enclose a square acre by drawing parallel lines, the parcel would be identified. Of course, a triangular or other different shaped parcel of one acre could be carved out of the northeast portion of Greenacre, but unless there was clear evidence to show that such an odd shaped parcel was intended, the court would probably decide on the square lot. See Bybee v. Hageman, 66 Ill. 519 (1873). See also Miracle Construction Co. v. Miller, 251 Minn. 320, 87 N.W.2d 665 (1958), where the court found a contract for sale of land “excepting house, out-...
- 14. If the description of land in a deed carries it to or from
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Chapter 10. Servitudes: Easements, Covenants, Equitable Servitudes Part 2 123 results (showing 5 best matches)
- Compare Rhue v. Cheyenne Homes, Inc. 168 Colo. 6, 449 P.2d 361 (1969) (requiring that an architectural committee act in good faith; then upholding its action as not arbitrary or capricious); Syrian Antiochian Orthodox Archdiocese v. Palisades Associates, 110 N.J.Super. 34, 264 A.2d 257 (Ch. 1970) (same). See Reichman, Residential Private Governments: An Introductory Survey, 43 U. Chi. L. Rev. 253, 292–293 (1976).
- See, e.g., Thayer v. Hollinger, 369 Mont. 181, 296 P.2d 1183 (2013) (express easement must be described with reasonable certainty in either documents conveying title or depicted or described in expressly referenced documents such as recorded plat or certificate of survey); Laux v. Harrington, 2012 ME 18, 38 A.3d 318 (2012) (extrinsic evidence can be used to establish scope of an easement only if the language in the deed is ambiguous).
- H. Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870-1970, Ch. 5 (2014); M. Horwitz,
- Brown v. Voss, 105 Wash. 2d 366, 715 P.2d 514 (en banc, 1986). See also Penn Bowling Recreation Center v. Hot Shoppes, 179 F.2d 64 (D.C.Cir.1949), requiring the owner of the “enlarged” estate to apportion its use so that only uses benefiting the original dominant estate could take advantage of the easement. Advocating departure from the common law rule is Kratovil, Easement Law and Service of Non-Dominant Tenements: Time for a Change, 24 Santa Clara L. Rev. 649 (1984). See also the troublesome decision in Frenning v. Dow, 544 A.2d 145 (R.I.1988), acknowledging the common law rule about using the easement to service the nondominant estate; but then, analogizing the activity to administering school desegregation, ordering the easement owner to come up with a plan, capable of being supervised by the owner of servient estate, for using the easement—apparently to service both dominant and nondominant estate—that would not increase the authorized burden on the easement. Finally, see S.S....
- In most states (California is one exception) the doctrine of easement by prescription is a common law rule, not a statute, and there is no explicit statute of limitation. However, the court adopts the period of time established by the adverse possession statute of limitation as the prescriptive period.
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Chapter 8. Marital and Concurrent Estates 138 results (showing 5 best matches)
- 3. In place of dower and curtesy, American states provide three layers of protection for a surviving spouse: (1) statutes of intestate succession, giving the surviving spouse a share (sometimes all) of the decedent spouse’s intestate estate; (2) statutes authorizing the surviving spouse to take an elective share (also called a forced share) of the decedent spouse’s property; and (3) in some states, statutes protecting omitted spouses from unrevised premarital wills. There are also states with regimes of community property, a concept derived from continental Europe, in which spouses share the assets acquired during marriage.
- In a partition suit, however, each joint tenant has the right to have the jointly owned property partitioned. Under the circumstances, by A making and paying for repairs and improvements, A has enhanced the value of Blackacre by $5,000. By returning to A the $5,000 which A expended in repairing and improving the property, A is made whole and B is not injured. Had there been no repairs or improvements the property would only have been worth $21,000. There is still that sum left after reimbursing A for A’s expenditures for repairs and improvements. Thus, it seems the equity court made an equitable partition of the proceeds.
- (a) The estate that A, B, and C have depends upon the jurisdiction and the date of the conveyance. At early common law they would have an estate in joint tenancy with right of survivorship. Of course, the fee simple in A, B, and C arises from the use in the conveyance of the words of limitation “and their heirs.” The joint tenancy arises from the fact that the common law preferred joint tenancy over tenancy in common. The essence of joint tenancy is that the two or more persons named to take the property take and hold as though they together constituted one person. Each of the joint tenants is a component part of the unity, the fictitious single person. Thus, by calling on one of the joint tenants to do the feudal services, the overlord called on all as a matter of law. This reason has long since disappeared, and statutes now provide that in a conveyance or devise to two or more persons it is presumed that the grantor intended to create a tenancy in common, not a joint tenancy with...
- (b) It was said that under the common law the husband and wife were one, and the husband was the one. The wife’s personality was merged in that of the husband. She was burdened with the common-law disabilities including inability to contract or to use or convey her property. When W, being seised of Blackacre, married H, at that instant she lost—and H gained—control of Blackacre. He could, during their coverture, enjoy the rents and profits of the property and dispose of these for the period of coverture. Furthermore, the property could be levied upon to satisfy his debts. The husband’s coverture estate continued until the marriage was dissolved by death or divorce (an absolute divorce at common law could be obtained only by act of Parliament and so was a rarity), or until issue was born of the marriage at which time his estate was enlarged into a curtesy estate. Thus, during the joint lives of H and W, H had full control of the land of W. This right extended to land in which W had...
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Chapter 17. Assurance of Title 299 results (showing 5 best matches)
- 3. The title policy typically contains exceptions and exclusions for defects of title not shown by the public record, zoning restrictions, defects that could be disclosed by a survey or other inspection of the property, or rights of parties in possession.
- No. When A owned only an undivided one half interest in Blackacre and executed to B a deed which on its face purported to convey a fee simple estate in the whole property, A’s deed covered a larger estate than A owned in the property. When A later acquired by inheritance the very estate which A’s deed purported to convey to B, the benefit of the subsequent acquisition inures to B. Had B been the defendant in this case, B could have claimed the benefit of the doctrine for B was a party to the original deed in which A both granted to B and warranted in B the fee simple in all of Blackacre. The doctrine operates in favor of both the parties to the original transaction and in favor of their privies who claim by consent through them. In other words, had D been a grantee of B, there would be no doubt that D would have the benefit of the doctrine.
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Chapter 9. Landlord and Tenant Law 434 results (showing 5 best matches)
- Where a local zoning ordinance “grandfathers in” a property owner’s nonconforming use of property, a landlord who leases that property would obviously have a great interest in assuring that the tenant continue that use to avoid losing the benefit of the exemption. Such landlords would be well advised to include a specific clause in a lease requiring the tenant to take actual possession of the property. Absent such a clause, however, courts are most reluctant to imply a duty on the tenant to take actual possession. Even, if both parties know at the time the lease is executed that a zoning ordinance has already been enacted prior to the execution of the lease and the premise is being operated as a nonconforming use, the tenant does not have such a duty to take possession without specific agreement in the lease.
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- 2. Where the subject matter of the lease is improved land, as distinguished from a lease of a part of a building, the tenant, at common law, remained liable under the lease and was obligated to pay rent although the building or buildings were destroyed by fire, flood or other casualty. This common-law rule, however, can be abrogated by a contrary lease provision and, in most states, is abrogated by statute or case law.
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- At common law the obligation to pay rent was not suspended merely because the leased premises were destroyed by fire. The common law reasoned as follows: T made a promise to pay rent monthly. The payment of rent was not expressly conditioned upon T’s ability to continue to receive the benefit of the leased premises. Thus, the obligation to pay rent was not suspended or terminated merely because the premises were destroyed by fire. But the common-law rule no longer prevails. Rather, an accidental destruction of the leased premises excuses the tenant from the obligation to pay rent absent express contractual provisions to the contrary.
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Chapter 4. Rights of Possessors of Land, Including Adverse Possession 251 results (showing 5 best matches)
- By an honest mistake A placed his boundary line fence on a line exactly 6′ to the east of the line KY and occupied the strip KLZY strip on O’s land for the statutory period. O then had a survey made and discovered that A had wrongfully occupied that strip. A refused to surrender possession of the strip, claiming title by adverse possession. O sued to eject A. At the trial A testified, “I occupied that strip of land because I thought it was mine but I never intended to take the land of anyone else.” Following A’s testimony, the court directed a verdict for O. Was the court correct?
- Many mistaken boundary line cases involve very small encroachments. For example, A and B may be neighbors and A’s garage or driveway may encroach on B’s land by 3 inches. In such cases it is difficult or impossible to ascertain whether there have been any encroachments without a costly survey. The difficulty with applying the Connecticut rule in these situations is that facts of possession may not have been sufficiently stark to put the true owner on notice that someone was in wrongful possession of his or her land. Recently one court which had adhered to the Maine rule abandoned that rule in favor of the Connecticut rule. However, the court recognized the unfairness to true owners that could result in applying the Connecticut rule to small encroachments. Therefore, it concluded that:
- However, when the encroachment of an adjoining owner is of a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for certain disclosure as in urban sections where the division line is only infrequently delineated by any monuments, natural or artificial, such a presumption is fallacious and unjustified…. Accordingly, we hereby hold that no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious.
- 1. If the person with the cause of action is under a disability at the time the cause of action against the adverse possessor accrues, most states extend the time to bring the cause of action to some period beyond the removal of the disability. While state laws differ, disabilities typically include minority, legal incompetence, and imprisonment. State laws must be carefully scrutinized to determine what extension is available.
- The common law as to when the statute runs ignored the diligence of the true owner who actively sought to ascertain the whereabouts of the lost property under what might be difficult circumstances. It is probably for this reason that at least the New Jersey court rejected the common law rule in favor of applying a so-called “discovery rule.”
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Chapter 14. Seller and Buyer: The Land Sale Contract 273 results (showing 5 best matches)
- A entered into a contract with B to purchase a parcel of real property. A deposit was made, and the balance was to be paid in monthly installments for eight years. B is to deliver a deed when the contract has been fully performed. Two years after entering into the contract, A learns that a lawsuit has been filed against B which, if successful, would prevent B from being able to convey a marketable title to A. A brings an action to be relieved from paying further installments pending the outcome of the litigation against B. Will A succeed?
- Yes. By the terms of the agreement B was required to convey to A a marketable title
- The principles discussed in this problem also apply to sales contracts where the seller is to be paid in full at the closing and prior to the buyer taking possession. For example, Seller contracts to sell Blackacre to Buyer for $300,000 in cash to close 30 days later. Ten days after the contract is signed, Blackacre is totally destroyed by fire. Under the common law and the doctrine of equitable conversion, title to Blackacre is in Buyer. Buyer bears the risk of loss for casualties that wholly or partially destroy the property prior to the closing. Thus, if a fire totally destroys Blackacre prior to the closing, Buyer still owes Seller $300,000. To address this risk, of course, Buyer might purchase casualty insurance on Blackacre commencing with the effective date of the contract. While many states do not follow this rule but instead place the risk of loss on the seller, sellers and buyers should not be dependent on laws that may or may not reflect their intent. Thus, it would be...the
- Under the common law rule, the buyer, to be protected, either must procure casualty insurance or negotiate a contract provision shifting the risk to the seller. Consequently, some jurisdictions have attempted to ameliorate the possible inequities in the doctrine of equitable conversion by the adoption of the Uniform Vendor and Purchaser Risk Act. This act provides that, unless provided otherwise in the contract of sale, the seller may not enforce the contract if property is destroyed by no fault of the buyer or is taken by eminent domain, if neither legal title nor possession has been transferred to the buyer. And, a minority of jurisdictions reverses the common law rule and places the risk of loss on the seller. In any event, risk of loss will stay with the seller if: (1) the loss was a result of the seller’s negligence; or (2) the seller is not capable of conveying the title promised in the contract.
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Chapter 6. Classifying Future Interests 362 results (showing 5 best matches)
- At early common law, a right of entry, even when attached to a reversion, was not alienable. However, by the statute 32 Henry VIII, c. 34 (1540), which is considered part of the received American common law, the right of entry when incident to a reversion was made alienable. Thus, when O assigned to X, both the reversion and right of entry incident thereto passed to the assignee, X. When B later breached the condition concerning the sale of liquor on the leased premises, X could have terminated the lease. Because X failed to do so, the lease continued. X, however, was not merely passive concerning the continuation of the lease. X accepted additional rent from the lessee who had breached the condition. The acceptance of the additional rent for the breach of the very condition in the lease constituted a waiver of the breach as a matter of law. A waiver is the intentional giving up of a known right. Whether a right has been waived is usually a question of fact, but reasonable persons...
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- At common law, a possibility of reverter could always be released to the owner of the determinable fee. In the event of a release, the estate of the holder of the fee simple determinable ripened into a fee simple absolute. Also, a possibility of reverter that was incident to the reversion of which it was a part could be alienated.
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- The interest limited in favor of C was valid at common law as a result of a technical peculiarity of the common law. At common law, every remainder had to be preceded by a particular estate of freehold, either a fee tail or a life estate. Every freehold estate (fee simple, fee tail or life estate) had to be created by livery of seisin. No freehold estate could be made to commence because there had to be the ceremony of feoffment, and that had to take place in the present. However, the creation of a noncontingent future interest was not considered a violation of the rule. For example, suppose X, being fee simple owner, wished to enfeoff Y for life, with remainder to Z and his heirs. X would go onto the land, make livery of seisin to Y with the declaration that seisin was for Y for Y’s life and thereafter for Z and his heirs. Both estates were considered as being created at the same time, and the feoffor was considered as having put the seisin out of himself for the entire time...
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Chapter 1. Personal Property: Rights of Some Possessors 131 results (showing 5 best matches)
Chapter 13. Cooperatives, Condominiums and Homeowners Associations 135 results (showing 5 best matches)
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- 5. Since the common law recognizes fee ownership and lesser property interests in usable airspace, it is feasible to create a condominium form of ownership at common law. Precedent for this form of ownership goes back to at least the Middle Ages, but condominium regimes were seldom created in the United States prior to statutory enactments in the 1960’s.
- The close proximity, the sharing of common facilities, and the divergent interests of the many neighbors often lead to friction and even lawsuits. Undoubtedly the two subjects that cause the hottest tempers are children and pets, but there are many others. In resolving any controversy concerning condominium living one must examine: (1) the applicable statutes; (2) the declaration of condominium or the master deed; (3) the articles of incorporation or association; (4) the by-laws; and (5) the rules promulgated by the Association’s Board of Directors. Some changes or restrictions will require an amendment to the declaration or master deed, some can be accomplished by amending the by-laws, and some rules and regulations can be promulgated by the Board of Directors.
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- No. The legal question is the validity of the restraint on alienation. Although the common law has generally prohibited restraints on alienation or construed them narrowly, many kinds of restraints on the sale of condominiums or cooperatives have been adjudged valid. The validity of a specific restraint should be evaluated by the purposes to be accomplished, the reasonableness of the restraint, and any evils that might result. The tenant stockholders in a cooperative apartment building are principally interested in the purchase of a home. The success of their individual efforts and of the entire project, however, is closely related to the success of the whole. An individual apartment does not stand or fall as a separate unit; rather, the success of
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Table of Contents 84 results (showing 5 best matches)
Chapter 11. Nuisance 150 results (showing 5 best matches)
- No. Andrea’s use of the rear of her lot together with the pollution of the surface water which regularly flows onto Emily’s lot, constitutes a nuisance. At common law the victim of private nuisances had three remedies: (a) an action for damages at law, (b) a suit in equity for an injunction or (c) self help. In this case Emily has seen fit to use self help to protect herself against the nuisance. Under the common law rule, one may treat surface water as a “common enemy” and use whatever means necessary to protect his property from such. The result of Emily’s act is merely to compel Andrea to take care of her own refuse and manure pile produced in her own back yard. Since Emily acted within her common law rights, the damage to Andrea is The fact that Emily could have sued Andrea either for damages at law or for an injunction for the pollution of the surface water constituting a nuisance, does not prevent Emily’s using what may be the cheaper and more effective remedy of self help.
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- At common law the answer was no, but later decisions have come out the other way. The basis of the traditional view is that every possessor of land at common law had the right of exclusive possession of the surface and the right to use such surface in any way he saw fit so long as he did not commit a nuisance. Motive and effect on a neighbor’s aesthetic sensibilities were immaterial. In this case, Amelia’s ugly wall was, wholly on her own land. True, she built the wall for spite—to irritate her neighbor, Jesse. Apparently she succeeded or Jesse would not have brought this suit. The common law embraced the idea that Amelia could not be committing a wrong while she was building wholly within her boundaries. But today most states and the Restatement (Second) of Torts § 826 take the view that the law does not protect a landowner building on her land for the sole purpose of gratifying her ill will against a neighbor. Under the Restatement approach the utility of the defendant’s conduct...
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- But the traditional view has been substantially displaced by modern statutes and common law rules. Today the public policy of most states is to encourage medical facilities, halfway houses or other sorts of group homes performing activities in the public interest. Some states have gone so far as to declare private restrictive covenants prohibiting the construction of such facilities unenforceable. That policy, properly articulated by statute or judicial decision, may also override the general common law of nuisance. Likewise, 1988 Amendments to the federal Fair Housing Act forbid housing discrimination against the handicapped. The extent to which these provisions may preempt the state common law of nuisance remains to be seen.
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Chapter 2. Bailments 98 results (showing 5 best matches)
- A can only recover $500 from Hotel. Modern statutes generally have modified the “insurer’s” liability created by the common law. Under the common law the guest did not have to disclose the value of the property in order to impose liability on the innkeeper, but this rule has changed. Modern statutes require a guest to use reasonable care and prudence in the protection of the guest’s property. One aspect of this care is the disclosure of the value of the property to the innkeeper in order to hold the inn liable for the excess of that provided for in the statute. Failure to disclose is an act of negligence that precludes recovery beyond $500.
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- This theme underlying the common law rule of estoppel is also reflected in Section 2–403 of the Uniform Commercial Code providing that “any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business.” This buyer is defined as a “person who in good faith and without knowledge that the sale to him is in violation of the ownership rights … of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind.”
- The common law does not thrust the duty of caring for the goods of another on a person against his will. When a person acquires possession of another’s goods involuntarily, the person has no affirmative duty to care for the goods unless the person does some act inconsistent with the proposition that the person does not accept possession. For example, if the person uses the goods for personal purposes, willfully destroys them, or refuses to surrender them to the owner on demand, the person then assumes dominion and possession over them. The person also assumes the liabilities of a bailee.
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Chapter 12. Legislative Control Over Land Use—Zoning, The Takings Clause, and Housing Discrimination 365 results (showing 5 best matches)
- A sues to enjoin the enforcement of any of the provisions of this zoning ordinance contending that to do so would take his property without due process of law and would deny him equal protection of the laws under the 14th Amendment of the U. S. Constitution. A specifically contends that the zoning ordinance prohibits the use of his property for industrial purposes for which it is peculiarly adapted, that it lies squarely in the path of industrial development from the large city nearby, and that the enforcement of the ordinance will depreciate his property from $10,000.00 per acre to $2,500.00 per acre. Should the injunction issue?
- 3. State statutes sometimes go further than federal law does, and may additionally condemn such things as discrimination on the basis of sexual orientation or marital status. For example, while federal law would not prohibit a landlord from renting to an unmarried man and woman living together, the law of a few states does.
- the Supreme Court concluded that even in the absence of any trespass a taking could occur when (1) a government regulation reduces the value of property to nearly zero; and (2) there was insufficient precedent for the challenged regulation in the state’s laws and legal traditions, such that the regulation could be said to be part of the property owner’s reasonable expectations. “Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts …” under existing statutory or common law principles.
- Arlene owns attractive beachfront property on the Pacific Ocean which she purchased some ten years ago. Although Arlene is not antisocial, she likes her privacy. The law forbids her from denying the public the right to use the “wet sand” area of the beach in front of her house, for that is not part of her property. However, that is not a big problem, for the beach is rocky and only the most adventurous can get to her part of the beach by crossing adjoining beachfront. In 1987, however, the state passes a statute declaring that beach property is in the “public trust,” and sufficient provision for public access must be made. The statute empowers the state’s Coastal Commission to find such access. During that same year Arlene decides to put an addition on her house. She files a petition with the Coastal Commission, which is required by law to evaluate all requests for beachfront construction. The Commission tells Arlene that they will grant her request to build the ...right of way...
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Chapter 15. The Evolution of the Modern Deed 80 results (showing 5 best matches)
- The law of uses developed through three distinct periods: (1) the “law period” between 1066 and about 1433, during which the law courts did not recognize a use as giving any rights; (2) the “equity period” from 1433 to 1535 when the Statute of Uses was passed, during which equity emerged and began to recognize a use as being an enforceable right; and (3) after the Statute of Uses was in force, during which period the passive use was automatically executed into a legal estate.
- See A. W. B. Simpson, A History of the Land Law (2d ed. 1986). W. Holdsworth, 3 A History of English Law 3–275 (2d ed. 1937); 7 id. at 3–400 (5th ed. 1942); T. Plucknett, A Concise History of the Common Law 610–623 (1956); Patton, 1 Land Titles 1–8 (2d ed. 1957).
- (a) The deed could be a common law “grant.” At common law only incorporeal rights or hereditaments lay in grant, that is, could be transferred by deed. These rights, having no physical existence, could not be delivered over to the grantee. Only physical property was subject to livery of seisin and required delivery of possession by feoffment. If the legislature of State X intended, by prescribing the above form of conveyance, to say that corporeal real property lay in grant as well as in livery, then the deed can operate as a conveyance equivalent to a common law “grant.”
- The examples given above involved a feoffment, the common law conveyance in which physical possession was delivered to the feoffee by the feoffor on the land. At common law that was the only way a present freehold estate could be transferred in a single transaction. Then came the revolutionary method of conveying freehold estates in land without making such delivery of possession. The new method, which is codified in modern statutes, eliminates the inconvenience of going onto the land to be conveyed. The conveyance is made by merely executing a deed in the lawyer’s office. This was made possible by the Statute of Uses.
- There were also four categories of persons against whom the use was not enforced: a bona fide purchaser from the feoffee if the purchaser had no notice of the use, the overlord if he obtained the land by escheat, the dower right of the feoffee’s wife, and a disseisor. The good faith purchaser would acquire both the legal title and an equity from his purchase, and this prevailed over the prior equity of the cestui que use. The overlord had a superior interest and, logically, the land would escheat free of the use; the dower of the feoffee’s wife was conferred by law but it is difficult to see how she could get a beneficial estate when her husband had none; and the disseisor, of course, acquired a new and independent title as a result of his own actions and operation of law.
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Summary of Contents 49 results (showing 5 best matches)
Chapter 3. Gifts, Including Bank Accounts 130 results (showing 5 best matches)
- 3.1 Introductory Principles.
- § 3.1 INTRODUCTORY PRINCIPLES
- 2. Joint and survivorship bank accounts frequently are used for the purpose of directing the devolution of funds on the death of the depositor. The effectiveness of these accounts to accomplish that purpose where one of the parties is the sole depositor depends, in part, upon the governing state law and the facts as to the particular joint bank account.
- Applicable Law:
- Applicable Law:
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Advisory Board 9 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Michael E. Moritz College of Law,The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, University of Virginia School of Law
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Table of Cases 261 results (showing 5 best matches)
- Opinion No. 26 of the Committee on Unauthorized Practice of Law ------------ 465
- Sleboda v. Heirs at Law of Harris ------------ 55
- Tennessee Division of the United Daughters of the Confederacy v. Vanderbilt University ------------ 48
- Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth ------------ 413
- Cope v. Inhabitants of the Town of Brunswick ------------ 385
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Index 118 results (showing 5 best matches)
Copyright Page 4 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- is a trademark registered in the U.S. Patent and Trademark Office.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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- Publication Date: April 25th, 2014
- ISBN: 9780314285492
- Subject: Property
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This title is a comprehensive, one-volume introduction to the modern law of real property. Each chapter begins with an overview of rules and concepts, followed by a series of problems and exercises designed to demonstrate how the rules and concepts apply in real situations. Each problem is followed by a comprehensive analysis of the legal issues raised, including citations of the relevant cases and statutes. This edition has been fully updated to reflect current developments.