Real Property in a Nutshell
Authors:
Bernhardt, Roger H. / Burkhart, Ann M.
Edition:
7th
Copyright Date:
2016
30 chapters
have results for Real Property in a Nutshell
Chapter 17. Fixtures 20 results (showing 5 best matches)
- Courts consider a number of factors in determining whether to classify an item as a fixture: (1) the method of annexation (how firmly and securely the item is annexed to the real property), (2) appropriateness (how well the item has been adapted to the real property and how appropriately it fits), (3) removability (how much removal will harm the realty), and (4) intent (the annexor’s objective intent, as inferred from the above considerations and from his relationship to the real property, especially whether he owns it).
- The person who owns and annexes personal property to real property may not own the real property. If the item becomes a fixture, title to it passes from the annexor to the real property owner despite the annexor’s subjective intent to the contrary.
- While a toilet is for sale in a plumbing supply store, it is personal property. Once bolted down in a bathroom, it becomes a fixture, which is a type of real property.
- Paint in a can in a paint store is personal property. When opened and applied to a wall, it becomes real property. However, it is not a fixture, because it no longer has a separate identity.
- A fixture is personal property that has become so connected with real property as to become part of it. To be a fixture, the object must retain its original identity even after being affixed to the real property.
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Chapter 1. Possession and Ownership 171 results (showing 5 best matches)
- Real property (realty) consists of land and objects that are permanently affixed to land, such as trees and buildings. Real property generally is immovable, whereas personal property (also known as personalty or chattel) consists of movable objects. Personal property can be tangible, such as a book or car, or intangible, such as an idea or the good will of a business. Property law largely consists of issues relating to real property, rather than to personal property. By and large, however, the rules are the same for both.
- During Paul’s ten years on the property, others frequently intruded and were not ousted by Paul. Paul will not acquire title by adverse possession because his possession was not exclusive. This result also can be explained by saying that Paul was not in actual possession, because a “real” possessor does not tolerate intruders.
- To uphold a gift that is otherwise invalid for lack of delivery, a court may hold that the donor held the property in trust for the donee. As beneficiary of the trust, the donee is entitled to the benefit of the property. To create a trust, there must be a settlor, a beneficiary, a trustee, and a res, and the settlor clearly must have intended to create a trust. The is the person who creates the trust (the donor in this case). The is the person who is entitled to the benefits of the property held in trust (the intended donee). The is the person who holds the legal title to the trust property for the beneficiary’s benefit. The trustee may be the settlor or a third party. The is the property that is placed in trust. In this context, the res is the property that was the object of the gift.
- The finder’s claim to the found goods is weaker if he (1) is a trespasser on the property, (2) is on the property for a limited purpose, such as to repair the sink or to deliver the mail, (3) is on the property as an employee of the landowner, or (4) agreed to give any found goods to the landowner, as often occurs in agreements between hotels and their housekeeping crews.
- Although a gift need not be of all rights in the property, the donor’s retention of certain rights may invalidate the gift. For example, if the alleged donor retains control of the property, reserves a right to revoke the gift, or continues to treat the property as her own, the transfer probably is not a gift.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- 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.
- © West, a Thomson business, 2000, 2005 © 2016 LEG, Inc. d/b/a West Academic
- Printed in the United States of America
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Chapter 8. Contract of Sale 73 results (showing 5 best matches)
- If the seller or buyer dies before closing, the sale still will be consummated. If the seller dies, because his interest in the land became personal property when the contract was signed, the people who inherit his personal property get the purchase price from the sale, but those who inherit his real property must execute the deed to the buyer. Similarly, if the seller married after contracting to sell the land and then died, the surviving spouse could not claim a marital interest because, when the marriage occurred, the seller held the legal title in trust for the buyer. Conversely, if the buyer dies, the purchase price is paid from the personal estate, and the people who inherit her real property will get the land.
- Originally, the warranty applied only to builder-sellers of mass-produced homes, but it now includes anyone who builds houses for sale. In some states, the warranty also applies to a seller that did not build the home if the seller is a real estate developer, such as the developer of a subdivision. However, the warranty normally does not apply to builders that did not sell the property, such as the contractor that the developer employed.
- If the buyer had the risk of loss but the seller insured the property, the seller holds the insurance award in constructive trust for the buyer in most jurisdictions and must use the award to repair the property or to reduce the purchase price. A court may render a comparable judgment when the seller had the risk of loss, but the buyer insured the property.
- A title may be marketable though the property itself is undesirable. Property that is subject to termite infestation, flooding, bad soil conditions, or other physical problems nevertheless may have a marketable title. Zoning and similar governmental restrictions on the use of property do not affect the title’s marketability, though in some jurisdictions an existing zoning or code violation may render title unmarketable.
- If a third party injures the property during the contract period, the doctrine of equitable conversion entitles the buyer to sue him. The seller may sue only if the buyer does not. In contrast, damages for trespass depend on the right to possess, rather than on title, so standing to sue depends on possession. Finally, a buyer may sue a seller who has possession of the property for waste, and a seller may sue a buyer who has possession for impairing the security if she damages the property.
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Chapter 3. Concurrent Ownership 60 results (showing 5 best matches)
- Although a life tenant and the future interest holder may be viewed as sharing ownership of the same property, their ownership is divided in time. At no time do they share the same rights in the property. In contrast, concurrent owners own the same interest at the same time. Their ownership is not chronologically separated. Their ownership is “undivided” because each owner has the right to possess the entire property. Both real and personal property can be owned concurrently. A joint bank account is an example of the latter.
- Ann and Bob are cotenants and both are in possession of the property. Ann makes the entire payment of $500 for the annual property taxes. If the jurisdiction makes owners personally liable for property taxes, Ann can recover $250 from Bob by bringing an action for contribution. However, if the jurisdiction provides that the taxes are only a charge against the land and not against its owners, Ann does not have an action for contribution against Bob. But, in an action for an accounting for rents collected from the property or in a partition action, the court can offset the $250 from the amount that otherwise would be due to Bob. A court also may give Ann a lien on Bob’s interest in the property if the action for contribution is unavailable to her.
- A cotenant who improves the property has an action for contribution against the other cotenants only if they either agreed to be liable before the improvement was made or ratified the expense afterwards. The improver cannot force the cost of improvements onto an unwilling cotenant. The improver can claim the costs of improvement in an accounting for rents and profits collected from a third party only to the extent that the improvement caused an increase in the rents. Unless the other cotenants pay their share of the cost: (1) In a partition in kind, the improved part of the property may be awarded to the improver; and (2) In a partition by sale, an increased share of the proceeds will be awarded to the improver to reflect the increase in the property’s value that resulted from the improvement.
- Partition in kind is a physical division of the property. In the case of land, the former cotenants become neighbors. Instead of undivided ownership of the entire property, each cotenant now owns a separate parcel. Thus, it differs from severance in that severance does not alter undivided ownership but merely eliminates the element of survivorship. The parties remain cotenants after a severance, whereas there is no cotenancy after a partition. Partition in kind can occur by court action for partition or by voluntary cross-conveyance among the cotenants.
- A cotenant who pays expenses that are necessary to preserve the title, such as for property taxes and mortgage payments, generally can recover the other cotenant’s share of the expenses in an action for an accounting or in a partition suit. However, an action for contribution is available only if the nonpaying cotenant was personally liable for these expenses.
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Chapter 10. Priorities: The Recording System 150 results (showing 5 best matches)
- Most states authorize a creditor who obtains a judgment to record it, which makes it a lien on all real property owned by the judgment debtor in the county where the judgment is recorded. If the creditor has attached any property before the judgment, the judgment lien relates back to the date of the attachment. Before the judgment, the attachment creates an attachment lien on the property. In most states, such lien creditors are not protected by the recording acts, because they have not obtained their liens in reliance on the records.
- Notice statutes provide that an unrecorded instrument is invalid against a subsequent purchaser without notice of it. These acts protect a purchaser who acquires property or an interest in it, such as an easement or mortgage, without notice of prior unrecorded instruments affecting it. In this way, they protect a subsequent purchaser who is “pure of heart.” For example, Arizona’s notice statute provides in part: “No instrument affecting real property gives notice of its contents to subsequent purchasers or encumbrance holders for valuable consideration without notice, unless recorded as provided by law in the office of the county recorder of the county in which the property is located.” Ariz. Rev. Stat. § 33–411(A).
- Race-notice statutes provide that an unrecorded conveyance is invalid against a subsequent purchaser who buys without notice of it and records before the prior conveyance is recorded. This type of act protects purchasers who buy without notice of an unrecorded claim, but only if they enhance the reliability of the recording system by recording their conveyance. These statutes protect subsequent purchasers only if they are both “pure of heart” and “fleet of foot.” For example, California’s statute provides in part: “Every conveyance of real property … is void as against any subsequent purchaser or mortgagee of the same property … in good faith and for a valuable consideration, whose conveyance is first duly recorded….” Cal. Civ. Code § 1214.
- Priority problems arise when a property owner (1) grants partial interests in the property to successive transferees, such as when the owner gives a mortgage on the property to one person and then gives a mortgage on the same property to another person, (2) purports to transfer the entire estate to different persons, such as when the owner conveys the property to one person and then conveys the same property to another person, or (3) transfers partial and total interests in the same land, such as when the owner gives a mortgage to one person and then conveys the fee title to another person. The relationship between the transferees is analyzed as a question of priorities—who has the prior and, therefore, superior interest. State recording systems generally decide the priorities.
- In most states, a property purchaser is charged with notice of any possessor’s rights to the property. Thus, a prior grantee that possesses property based on an unrecorded document will prevail over subsequent purchasers though nothing appears in the records. The effect of this doctrine is to compel a purchaser to inspect the land, as well as to search the records.
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Chapter 18. Trespass 28 results (showing 5 best matches)
- Title to real property does not constitute an absolute privilege for entry. The owner is privileged to peaceably enter property in another’s possession but may not use force to do so. In most jurisdictions, forcible entry creates civil and criminal liability.
- In an action for damages for trespass, the plaintiff must either possess the property or hold a present possessory interest in it. The trespass action protects possession, rather than ownership. Thus, a trespass action may be brought by a tenant, a purchaser in possession under a land contract, a cotenant in possession alone or with others, an adverse possessor, or a mere peaceful possessor of another’s property. Of course, an owner who also has the right to possess also can bring a trespass action. A nonpossessory interest holder may recover only if she can show some injury to her interest. Harm is a prerequisite to any such action because, technically, it is not a trespass on her interest.
- In certain cases, a person may be entitled to enter another’s land to protect his property interests. This right is not a general license to wander about but is limited to such entry as is necessary to protect the property interest.
- A building inspector or other public official enters property in furtherance of an official duty. The entry is privileged, though a warrant may be required if the entry would constitute a search or seizure under the Fourth Amendment.
- A possessor may recover compensatory damages for actual harm suffered from a trespass. If permanent injury has occurred, the measure of damages is either the diminution of the property’s value or the cost of restoration. Consequential damages, such as for personal injuries, mental anguish, and lost profits, also may be recovered, subject to the usual tort principles of foreseeability and mitigation of damages. In certain cases, the damages may be based on the benefit received by the trespasser. For example, if a trespasser removes assets from the property, she may be liable for their value or she may be required to return them or pay a royalty for them. A trespasser who improves the property sometimes is allowed to offset the value of her improvements against her trespass liability. When the trespass is continuing but the injury is not permanent, damages will be awarded only for injuries caused before the date of judgment. The possessor may file subsequent actions against the...
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Chapter 12. Mortgages 33 results (showing 5 best matches)
- When real property was security for a loan during the early common law, the parties had to comply with the rules of conveyancing and estates in land. Because the law of future interests was more rigid then, extreme care was required. A borrower’s promise to convey his property to the lender if he failed to pay the debt probably would be treated as an attempt to create an illegal springing interest and, therefore, would be void.
- Mortgages are recordable and are subject to the same priority principles that apply to other real property interests. A mortgage that qualifies for protection under the recording act from any other mortgage is referred to as a “senior” or “first” mortgage. Subsequent mortgages are called “junior” mortgages and are numbered according to their priority, such as second and third mortgages. In many states, a purchase money mortgage has special priority status.
- In exchange for $50,000, Mort gave Marie a deed to his property, and she gave him an option to repurchase the property one year later for $55,000. A court could hold that this transaction was a $50,000 loan at 10% interest, though Mort did not execute a promissory note. If the property was worth $100,000, this result is especially likely. If a court determines that the “option” was really a mortgage, Mort may exercise the equity of redemption and recover the property even after the option expired according to its terms.
- Priority determines the title acquired by the foreclosure purchaser and the distribution of the foreclosure sale proceeds. When a senior mortgage is foreclosed, the property is sold free and clear of the senior mortgage and of any interest that is junior to it. The sale proceeds first are paid to the foreclosing mortgagee. If any surplus remains, it is paid to the junior interest holders in the order of their title priority. Any remaining funds go to the owner for her lost equity in the property. When a junior mortgage is foreclosed, the property is sold subject to the senior mortgage, and the senior mortgagee does not get any of the foreclosure sale proceeds.
- Mort borrowed $50,000 from Marie and signed two documents, a note and a mortgage. The note says in essence: “I promise to pay you $50,000.” The mortgage says in essence: “If I do not pay the $50,000, you may sell the property that is the subject of this mortgage and may keep enough of the sale proceeds to satisfy the debt.”
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Chapter 2. Common Law Estates 257 results (showing 5 best matches)
- Unlike the Rule in Shelley’s Case, the Doctrine applies to personal property, as well as to real property.
- Unlike property owned in joint tenancy, community property cannot be severed, because neither spouse alone can convey any fractional interest in the property. Also unlike property owned in joint tenancy or tenancy in common, community property cannot be partitioned by a court in an ordinary judicial proceeding. Instead, it is divided between the spouses in a marital dissolution proceeding.
- The present estates are classified according to duration. The estates described in this Chapter are the only ones that our common law recognizes. They can be created for real and personal property.
- Some jurisdictions have community property ownership, which is a form of marital co-ownership derived from the civil law system. It is based on the principle that both spouses contribute equally to a marriage and, therefore, should own equal shares in all property acquired during the marriage even if the title is in just one spouse’s name. In general, property may be held as community property only between parties who are legally married, although certain similar property rights may be held to exist between persons who believe they are married, hold themselves out as married, or, sometimes, merely live together.
- The Uniform Marital Property Act, which has been adopted in Wisconsin, employs the same principles as community property, though the terminology is different. “Marital property” is equivalent to “community property,” and “individual property” is equivalent to “separate property” in community property jurisdictions.
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Chapter 5. Easements, Profits, and Licenses 180 results (showing 5 best matches)
- Steve owns a parcel of land in fee simple absolute. He granted Dora a right of way on a road across it. She has an easement, not a possessory interest, in Steve’s property. She may use the road but cannot stop others from also using it, except to the extent that their use interferes with hers. In contrast, Steve, as possessor, may exclude everyone except Dora from crossing his property, even though their crossings constitute no real injury to Steve. As possessor, Steve also may continue to use the road himself, so long as he does not interfere with Dora’s use. If Steve leased or sold the road to Dora, thereby transferring full possession to her, she could exclude him and all others from using the road even without showing that their use interfered with hers.
- When a real estate developer acquires a parcel of land to subdivide into smaller lots, he will prepare a map (plat) that shows where each home and street in the subdivision will be located. If the map shows that a buyer’s home will be built adjacent to a street, she has a legitimate expectation that the developer will construct the streets and open them for public use. Courts enforce this expectation by creating an implied easement of access over the streets shown on the map. Some courts imply the easement over all streets in the subdivision (beneficial or full enjoyment rule), whereas others limit the easement to those streets necessary for access from the property to the nearest public way (narrow or necessary rule). An intermediate rule makes the easement’s scope as extensive as necessary to protect the market value of the buyer’s property. The Restatement of Servitudes provides that mapped streets imply an easement to use the street and that mapping of amenities, such as parks...in
- Steve granted Dora the right to swim in a pond on his property. Dora is not a neighbor. If this is not a license, it probably is an easement in gross. Dora may swim in the pond regardless of what property she owns or whether she owns any property at all.
- An easement holder is known as the dominant tenant (represented by “Dora” in the Illustrations). The dominant tenant does not have the right to possess the property but has only a right to make some limited use of it. Property subject to an easement always is owned by someone other than the dominant tenant. In this context, the owner is known as the servient tenant (represented by “Steve” in the Illustrations).
- Steve agreed with Dora that he would plant and care for a tree on his property. Dora does not have an easement in Steve’s property. A negative easement would permit Dora to restrain, not compel, Steve from some use. Nor is this an affirmative easement, because Dora does not have the right to enter Steve’s property to plant or care for the tree herself.
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Chapter 7. Real Estate Brokers 30 results (showing 5 best matches)
- Property can be sold without a broker’s assistance, but the buyer and seller generally find it to be more convenient to have a broker assist them. Therefore, most real estate sales involve a broker. Unlike many other retail industries, the broker does not carry her own inventory. Rather than buying and selling land herself, she normally acts as an agent for the buyer or seller.
- A broker must be licensed by a state regulatory agency. To obtain a license, a broker must possess certain minimum academic credentials, such as some college education, must pass a qualifying exam, and must satisfy character and fitness requirements. The broker also may have to satisfy continuing education requirements and have a certain amount of experience in real estate marketing. Real estate salespersons hold inferior licenses that entitle them to perform broker services only under the supervision of a licensed broker. The educational requirements for a salesperson’s license are less than for a broker’s license.
- The employment contract between a broker and her principal is called a listing agreement. In the listing agreement, the seller authorizes the broker to act as his agent in advertising the property for sale and showing it to potential purchasers. Many states require that listing agreements be in writing.
- A property owner hires a broker to market the property. Thus, the broker is the seller’s agent. The broker locates potential buyers and presents their purchase offers to the seller, which he can accept or reject. The broker normally does not have authority to sign a sales contract on the seller’s behalf or to transfer title to the property to the purchaser.
- A broker earns a commission under an open listing agreement only if she is the “procuring cause” of the purchase. Thus, she is not entitled to a commission if the seller or someone else finds the buyer. “Procuring cause” is a question of fact. In some states, the standard is satisfied if the broker was the first person to notify the buyer or someone connected with the buyer about the property’s availability. In other states, the broker must play a
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Chapter 6. Real Covenants and Equitable Servitudes 102 results (showing 5 best matches)
- Ann covenanted with Bob that she would maintain his garden. This covenant does not satisfy the privity of estate requirement for a real covenant. Ann then sold her property to Cathy, who knew about the covenant. Because the burden does not touch and concern land, Cathy probably is not bound by an equitable servitude.
- Ann covenanted with her neighbor, Bob, that she would not use her land in competition with his use of his land. This covenant does not satisfy the privity of estate requirement for a real covenant. Ann then sold her property to Cathy, who knew about the covenant. In many jurisdictions, the covenant’s benefit is deemed not to touch and concern Bob’s land, although its burden touches and concerns Cathy’s land. Therefore, in England, the burden would not bind Cathy, even in equity. But, in the United States, Cathy probably would be bound by an equitable servitude.
- In a few jurisdictions, equity will not enforce affirmative promises (promises that require the promisor to perform an act). Only negative promises (those that prohibit the promisor from acting in a certain manner) are enforceable. However, most modern courts do not make this distinction and will enforce either kind of promise, as a real covenant or as an equitable servitude.
- Generally, parties creating an easement use conveyancing language, such as “I grant” or “I reserve.” In contrast, parties creating a covenant use promissory language, such as “I promise” or “I agree.” However, regardless of the language used, a court is free to determine the real character of the interest regardless of the creating language. The Restatement of Servitudes permits a servitude to be created “by contract or conveyance.” § 2.1.
- A duty to refrain from acting in a particular way can be either a negative easement or a covenant, but an affirmative obligation can only be a covenant and not an easement. A covenant, whether affirmative or negative, can never be acquired prescriptively. To avoid confusion, easements and covenants will be treated in this Chapter as distinct property interests, though the Restatement categorizes them both as “servitudes.”
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Chapter 9. Transfer of Title by Deed 109 results (showing 5 best matches)
- Grace conveyed property to Gene by general warranty deed for $10,000. Gene conveyed it to Rita by general warranty deed for $9,000. Rita conveyed it by general warranty deed to Sam for $11,000. Grace never owned the property, and the real owner evicted Sam. Sam may sue Rita based on her covenants and recover $11,000. He may sue Gene based on the future covenants in the deed to Rita and recover $9,000 (the amount Gene received). He also may sue Grace on the future covenants in the deed to Gene and recover $10,000. However, Sam’s total recovery cannot exceed $11,000 even if he obtains judgments against all three defendants. If Sam recovers from Rita, she has an action against Gene or Grace. If Sam or Rita recovers from Gene, he has an action against Grace.
- A limited warranty deed normally states that the grantor “grants,” “conveys,” or “bargains and sells” the property to the grantee. In many states, such language is statutorily defined as representations that the grantor owns the property and has not encumbered it or conveyed it to anyone else. In the absence of a statutory definition, these representations are expressly included in the deed.
- When these covenants are breached, the grantee can recover the price he paid for the property or for so much of the property as the deed failed to convey. Courts differ as to whether the grantee can retain the property or must tender it to the grantor as a precondition to recovery. If the grantee buys the outstanding title, he can recover the amount paid for it, not exceeding the amount the grantor received when she sold the property. In a minority of jurisdictions, the grantee can recover up to the property’s value on the date of the breach.
- A quitclaim deed usually states that the grantor “quitclaims” or “releases” the property to the grantee. By these words, the grantor makes no representation that she has any property to convey. The deed merely states that the grantor conveys whatever interest, if any, she has in the property. This form of deed is useful for quieting title to property by buying potentially adverse claims, because a grantor is not liable if, in fact, nothing was owned or conveyed. Quitclaim deeds also commonly are used to release mortgages and for intrafamily transfers.
- This covenant is breached if the grantor did not have seisin (title) when she delivered the deed. In a few states, it is breached even if the grantor owns the property but if a potential adverse possessor whose claim has not yet ripened is in possession. Conversely, in a few states, it is not breached if the grantor does not own the property but is wrongfully possessing it as a potential adverse possessor. In this case, the grantor has tortious seisin. The grantee need not be evicted from the land to claim a breach. It is sufficient that the grantor did not have seisin.
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Chapter 20. Land Use Regulation 172 results (showing 5 best matches)
- The California Subdivision Map Act, Cal. Gov’t Code § 66479, provides: “There may be imposed by local ordinance a requirement that areas of real property be reserved for parks, recreational facilities, fire stations, libraries or other public uses.” Another section authorized dedication of land or payment of fees in lieu “for classroom and related facilities for elementary or high schools” where existing schools are overcrowded. Cal Gov’t Code § 65974.
- California’s zoning enabling legislation provides: “Variances from the terms of the zoning ordinances shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property.” Cal. Gov’t Code § 65906.
- Courts in early cases focused on the formal nature of the government activity. If government physically took possession or took title to property, it had to pay just compensation. If government activity injured property, it might be liable in trespass or nuisance. On the other hand, if a government regulation merely caused the property’s value to decline, a taking did not occur, because title, possession, and the property’s physical condition were unaffected. Today, courts generally reject these distinctions and recognize that government may take land by severe regulation as much as by the institution of formal eminent domain proceedings.
- A land use regulation that severely burdens property may constitute an unconstitutional taking of property (“regulatory taking” or “inverse condemnation”) under the Fifth or Fourteenth Amendment of the United States Constitution or a similar state constitutional provision. The courts have been unable to reach a consensus or single theory as to when a regulation amounts to an invalid taking of property except in two types of cases.
- Many communities protect their historic buildings and neighborhoods by specially designating them and subjecting them to stringent design control. The owner of a property designated as a landmark or located within a historic district is prohibited from altering its external appearance without obtaining a permit from the appropriate regulatory agency. In return, the owner may be given a property tax reduction or may be permitted to use the building in an otherwise unpermitted manner to generate an economic return. In some situations, the community may purchase a preservation easement in the façade or structure, thereby eliminating the owner’s right to destroy its historic features.
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Chapter 13. Airspace 9 results (showing 5 best matches)
- Government flights that render the surface almost valueless because of their frequency or nuisance-like qualities may constitute a taking of the owner’s property, which requires the government to pay just compensation to the owner. Similarly, the noise of takeoffs and landings at a governmentally operated airport may take or damage its neighbors’ property. In contrast, a private airline company would not be liable on a taking claim, though it could be liable for nuisance. Taking of property is covered in Chapter 20.
- Stan grants Dora the right to string a power line across his property. She has an easement in the airspace over his property. If Dora installs the power line without Stan’s consent and he fails to exercise his legal remedies within the statute of limitations, Dora may acquire a prescriptive easement or title by adverse possession in the space occupied by the line. She also could acquire an interest if she regularly drove golf balls over Stan’s land or if the overhanging eaves on her roof intruded into Stan’s airspace for the limitations period.
- Congress has declared that the upper airspace is navigable and has given freedom of transit to the public in that space. A surface owner retains conventional property rights in the airspace over her land only to the extent that she reasonably can use it. The owner may not be restrained from building a tall building even though it may interfere with air travel, unless it is expressly prohibited by law. Conversely, the owner does not have a trespass action for flights above the land if they are in a part of the airspace higher than the owner could reach through ground construction. A trespass occurs only when the flight is low enough to intrude upon actual or potential ground-based activity. Trespass is covered in Chapter 18.
- Len leases a second floor apartment in his building to Tina. Technically, Tina has a leasehold estate in airspace located approximately ten to twenty feet over the surface of Len’s land. If Tina enters any other second floor apartment without permission, she is trespassing into the airspace of the person entitled to possess it.
- A flight may be actionable as a nuisance if it disturbs use of the land’s surface by virtue of its noise, glare, danger, or other adverse impact. A flight may constitute a nuisance even if it flies only over adjacent land or from a neighboring airport, rather than directly over the plaintiff’s land. Courts usually award damages, rather than injunctive relief, in such cases unless the overflight is by a private party for cloud seeding or for some other form of weather modification that is likely to affect the owner’s land. Nuisance is covered in Chapter 19.
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OUTLINE 189 results (showing 5 best matches)
Chapter 11. Title Insurance 24 results (showing 5 best matches)
- A title policy’s protection may continue only while the insured purchaser owns the property. Many policies also protect the insured after she sells the property if she gave title covenants in her deed or accepted a purchase money mortgage from the purchaser. But the policy will not insure the next purchaser. That person must purchase his own title policy.
- Barb’s neighbor, Tom, claims an easement across her property. The easement was not listed as an exception in Barb’s title insurance policy. Her title company may (1) compensate her for the loss of property value that the easement causes, (2) purchase the easement from Tom to make Barb’s title conform to her insurance policy, or (3) contest the validity of Tom’s claim. If Barb has a cause of action against her seller or against any earlier owners based on title covenants in the deeds that they gave, the title company may subrogate to her rights and sue to enforce the title covenants.
- Barb’s preliminary title report shows that Sam has marketable title to his property. Barb is borrowing part of the purchase price from a bank and has promised to give it a mortgage as security for the loan. Barb will instruct the closing agent to obtain an owner’s title insurance policy that shows title vested in her subject to the bank’s mortgage. The bank will direct the closing agent to disburse the loan proceeds only if the bank gets a lender’s title insurance policy that shows it has a valid mortgage on the property.
- Title policies also generally exclude risks that can be discovered only by physically inspecting the premises (“matters of survey”), such as questions involving boundaries, encroachments, and rights claimed by persons in possession. The title company usually limits its coverage to those risks that can be ascertained from the property records, because its expertise is in conducting title searches. However, risks from matters of survey are not completely unascertainable. Therefore, the company may be willing to insure against them for a higher premium. In this case, the company will physically inspect the premises and will issue an endorsement to the title policy. Because the purchaser usually has inspected the property personally, the endorsement may be an unnecessary expense.
- In searching Sam’s property title, the title company discovers that it is subject to a recorded easement. Unless the easement is removed from the title before Barb purchases it, her insurance policy will show that her title is subject to the easement. The company will not have any liability because of the easement. However, if the title also was subject to a previously recorded mortgage that was not shown in the title policy, the title company will be liable for that encumbrance if Barb suffers a loss as a result of it.
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- No other course in the first year of law school seems to involve as many rules as Property Law. Students suffer under the sheer number of rules thrown at them, and professors chafe at the amount of class time consumed in the brute articulation of all these rules. This book attempts to remedy that a little. For students, it offers a brief compilation of all or most of the rules that are covered in the standard Property Law casebooks and organizes them so as to minimize their seeming randomness and arbitrariness. For professors, it offers an opportunity to free up class time for an exploration of how the rules came to be, how they operate (or how to operate around them), and whether they work. Our goal is to make the mechanical statement of the rules the beginning, rather than the end, of the study of Property Law.
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Chapter 4. Landlord and Tenant 231 results (showing 5 best matches)
- Lil leased an arena for a concert. A person attending the concert was injured when a step in a stairwell in the arena broke. If the defect in the step existed before the property was leased, Lil is liable.
- A lease assignment transfers the tenant’s rights under the lease to the assignee, which creates privity of estate between the landlord and assignee. Based on privity of estate, the landlord and assignee can enforce the real covenants in the lease against each other. Real covenants are covenants that directly affect the land or the tenancy. For that reason, they “run with the land.” If the lease includes any personal covenants (covenants that do not directly affect the land or the tenancy), the assignee is liable for them only if she “assumed” personal liability for the tenant’s lease obligations. If the assignee assumes the tenant’s lease obligations, the landlord is a third party beneficiary of the assumption agreement and can enforce it against the assignee. If the landlord was a party to the assumption agreement, she is in privity of contract with the assignee and can enforce it on that basis.
- The parties to a lease are the landlord and the tenant, also known as the lessor and lessee. The tenant usually pays for his right to possess the property in the form of rent. In this section, “Lil” will be the landlord in the Illustrations and will be referred to by feminine pronouns in the text. “Tom” will be the tenant and will be referred to with masculine pronouns in the text.
- Today, landlords are liable for all damages caused by a defect in the premises for which she is responsible. Courts have awarded damages for personal injury, decrease in rental value caused by the defect, property damage, relocation expenses, and emotional distress. A landlord also can be liable for punitive damages when her breach was willful and wanton or fraudulent.
- The parties always can agree to terminate a tenancy before it would end normally. Unlike a contract, surrender is not accomplished simply by agreeing to terminate. Because the lease conveyed an estate in property to the tenant, he should reconvey that estate to the landlord by a surrender deed if the estate is long enough to come within the Statute of Frauds. However, surrender by operation of law sometimes occurs when the tenant abandons the property and the landlord re-enters. Surrender by operation of law eliminates the need for a writing. A conveyance of the landlord’s reversion to the tenant is by release deed.
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Part 3. Miscellaneous Property Doctrines 2 results
- This Part includes a variety of topics that are taught at scattered places in the Property Law course or sometimes not at all Air, water, and support sometimes are covered collectively as “incidental rights in land” or with easements. Agreed boundaries may be covered as part of adverse possession or with deeds. Fixtures may be part of landlord-tenant law or an advanced mortgages or commercial law course. Trespass and nuisance often are studied in Torts or are treated as parts of adverse possession or land use. Land use may be a separate course and not covered at all in the basic Property Law course.
- MISCELLANEOUS PROPERTY DOCTRINES
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Chapter 19. Nuisance 10 results (showing 5 best matches)
- A nuisance is public, rather than private, when it affects a significant portion of the community, rather than just a few neighbors. In some jurisdictions, only a public official has standing to bring a public nuisance action. However, an individual may sue for damages or for an injunction if he can show special harm to himself or to his property different than the harm that everyone else is suffering. Courts are more likely to grant an injunction in a public nuisance case than in a private nuisance case because more people are adversely affected by the defendant’s conduct.
- Damages are the appropriate remedy for a nuisance that has ceased. The plaintiff is entitled to recover for personal and property harm. If a nuisance threatens to continue indefinitely, an award of damages alone constitutes a form of private eminent domain. The defendant essentially is paying for the property interests it has appropriated from the plaintiff.
- Nora works on cars on her property. If she drives the cars onto her neighbor’s property, she is guilty of trespass and is liable for at least nominal damages regardless of harm. On the other hand, if Nora’s work makes a great deal of noise, her neighbor may recover in nuisance if he can show that the noise unreasonably interferes with the use and enjoyment of his land. If his land is vacant or if his house is situated far from noise, he cannot sue for nuisance.
- Nora’s race track emits such bright light during night racing that it impairs Owen’s neighboring drive-in movie business. In deciding whether to enjoin Nora from night racing, a court might compare the relative avoidance costs. If the court determines that it is cheaper for Nora to shield her lights or to give up night racing than for Owen to build a high wall, it may grant an injunction. The court also could condition the injunction on Owen’s compensating Nora if the court decides that equitable principles require it. In such a case, the court effectively has held that Nora is entitled to emit light but that Owen can stop her from doing so by paying a price set by the court, rather than by the parties. This award is a “liability entitlement,” rather than a “property entitlement,” because it resembles a personal injury award for which a judge or a jury determines the price of a broken limb. Alternately, the court could deny an injunction to Owen if it determines that he can remedy...a
- Nuisances generally involve some interference with the physical senses, such as smoke, dust, odor, noise, light, or heat, that harm a normal person’s use of his property. An activity that is merely visually offensive generally is not an actionable nuisance, although activities that cause fear, such as a funeral parlor, or moral indignation, such as a brothel, may be. Although nuisance usually involves intentional conduct by the defendant, negligence generally is not a defense. Malice may convert an otherwise legitimate activity into a nuisance. For example, if a landowner builds a tall fence solely for the purpose of interfering with the flow of light and air to a neighbor’s property, that “spite fence” constitutes a nuisance.
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Chapter 16. Agreed Boundaries 8 results (showing 5 best matches)
- Although the boundary description in a deed may be easy to understand, converting the description into lines on the earth may be difficult. Unless an owner employs a surveyor to mark the property lines, the owner may have only an approximate idea of their location. Adjoining landowners frequently have difficulty settling the precise location of their boundary.
- Neither Owen nor Nora knows the boundary’s location. To settle the matter, they agree that the road will be the boundary. This agreement may be binding, though oral, even if the true boundary is subsequently discovered. In some jurisdictions, the uncertainty must be justified; the parties cannot be merely too lazy to locate the real line.
- Owen’s deed states that his property’s northern boundary is one mile north of the stream. The deed of his neighbor, Nora, describes her southern boundary as one mile north of the stream. Although the two boundaries coincide on paper, neither Owen nor Nora knows the precise location. To mark the boundary accurately, they need a surveyor.
- Once established, an agreed boundary binds not only the original parties, but also their successors, though the property records do not warn successors of the change.
- Although the true boundary between Owen’s and Nora’s properties is ten feet north of the road, they mistakenly believe that the road is the boundary. Any action they take based on this mistake will be invalid, and they will be relieved from the consequences of their mistake.
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Chapter 15. Support 18 results (showing 5 best matches)
- A landowner is entitled to have his land naturally supported by neighboring properties and by the subsurface property beneath his land. Consequently, activity by a neighbor or subsurface owner that causes another’s land to subside may be actionable. Support by neighboring land is “lateral support.” Support by subsurface land is “subjacent support.” For the most part, the rules concerning the two types of support are similar.
- land. In some jurisdictions, the owner may recover for injuries to his land but not to his building. The theory behind this rule is that compelling the second improver to pay damages for the first improver’s building gives preferential treatment to the first, which is contrary to the policy that all owners have equal rights to improve. In other jurisdictions, removal of support makes the neighbor liable for injury to buildings, as well as to land, because the building damage was foreseeable. The measure of damages in these cases may be the cost of repairs up to the property’s market value, the decrease in the property’s market value, or the lesser of those two measures.
- Nora excavated on her lot to build a house on it. As a result, Owen’s unimproved land subsided. Nora is liable to him even if the excavation was not performed in a negligent manner.
- Because Owen discharged great amounts of water onto his land, the soil’s natural cohesiveness has been impaired. If Nora now excavates on her land in a reasonable manner, she will not be liable to Owen for any subsidence that occurs as a result of the land’s impaired condition.
- The owner of unimproved land has an absolute right to support. Excavation that causes neighboring unimproved land to subside is actionable though it was not negligently performed and was essential to the land’s use. This absolute right applies only to land in its natural condition and not to land that has been weakened or improved. Liability exists only when land removal causes an actual subsidence. If water removal causes subsidence, the matter is governed by water law, rather than by support law.
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Index 34 results (showing 5 best matches)
Chapter 14. Water 28 results (showing 5 best matches)
- A landowner may drain surface waters in connection with a reasonable use of the land if a reasonable necessity exists for the draining, reasonable care is exercised to avoid unnecessary injury to others, and the benefit outweighs the harm. This more recent doctrine directly achieves the result that the other two doctrines in fact produce as a result of their exceptions.
- Ursula diverts a significant portion of the stream’s water for sale. Don does not use the stream water, so this alteration of the flow does not affect any of his activities. In a natural flow doctrine jurisdiction, he may enjoin Ursula’s diversion. In a reasonable use doctrine jurisdiction, he cannot.
- Surface water naturally flows from Ursula’s upper land to Don’s lower land. Under the common enemy rule, Don can erect a barrier to prevent the water from leaving Ursula’s land or can channel it onto Lowell’s lower land. Under the natural servitude rule, neither activity would be allowed. Under the reasonable use rule, Don may do either depending on the need to drain his property, the care he takes to avoid unnecessary harm to Ursula’s and Lowell’s lands, and the benefits to
- A person who owns land bordering on a stream, lake, or other body of water can use the water for drinking, swimming, fishing, and other appropriate activities. But the landowner does not own the water. His rights and privileges are usufructuary, rather than proprietary. Water is owned only after it has been taken from the stream or lake or if it is part of a lake or pond entirely surrounded by one owner’s land. Rights to use water in a stream or river are called riparian rights. Rights connected with ownership of land on a lake, sea, or ocean are called littoral rights.
- A parcel of land is riparian when any part of it is contiguous to a stream or river if it extends only a reasonable distance from the water and is within the same watershed. A portion of the land may lose its riparian character if title to it is severed from the rest and if no part of the severed portion is contiguous to the stream. Conversely, in some jurisdictions, nonriparian land may become riparian when an adjacent riparian owner acquires it. Land adjacent to a lake, sea, or ocean is called littoral and is subject to the same rules as riparian land.
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Part 2. Conveyancing 1 result
- Part Two addresses problems incident to the transfer of interests in land. Landlord-tenant law could be regarded as a branch of conveyancing, because it involves the transfer of a leasehold estate from landlord to tenant. However, it has been treated as a separate topic because the problems involved in that context generally deal with the parties’ relations after the lease has been executed. The creation and transfer of easements also could be treated as a conveyancing topic. However, the conveyancing aspects of easements generally are incidental to other issues. Adverse possession is not a question of conveyancing at all, because the title acquired by the adverse possessor is an original title, rather than one conveyed by the former owner.
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Advisory Board 3 results
- Publication Date: November 20th, 2015
- ISBN: 9781634599207
- Subject: Property
- Series: Nutshells
- Type: Overviews
- Description: This concise work discusses most rules covered in real property casebooks. The text is divided into three sections. Part One provides an overview of property interests by covering lost v. mislaid v. abandoned property, adverse possession, gifts, common law estates, future interests, landlord-tenant law, concurrent ownership, marital property rights, easements, profits, licenses, real covenants, and equitable servitudes. Part Two covers conveyancing, including real estate brokers, contracts of sale, deeds, recording, title insurance, and mortgages. Part Three covers a variety of property rights and liabilities, including airspace, water rights, the right to support, agreed boundaries, fixtures, trespass, nuisance, and land use regulation.
