Chapter 17. Fixtures 17 results (showing 5 best matches)
- 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.
- 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.
- In many situations, the person affixing personal property to real property owns both. Nevertheless, determining whether the affixed item is real or personal property is important for the following reasons.
- A real estate mortgage generally encumbers the mortgagor’s real property, but not his personal property. Therefore, a foreclosure sale transfers title to personal property assets that have become fixtures.
- At common law, real property descended to the intestate’s heirs, while personal property went to his next of kin. That distinction rarely exists today, but a similar issue could arise if the decedent’s will gave his real and personal property to different people.
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Chapter 1. Possession and Ownership 69 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.
- “Actual” possession means no more than real possession. Its main function is as a counterpoint to constructive possession. By itself, constructive possession never ripens into title by adverse possession. An ejectment action lies only against real possessors.
- When someone takes possession of property that is owned by another, he has an obligation to return it to the owner. A borrower, renter, finder, and thief all are obligated to return the property to its owner on demand or according to the terms of their agreement. Each also has some duty of care in handling the property.
- 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.
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Chapter 8. Contract of Sale 33 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.
- 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.
- 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 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.
- 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 18. Trespass 12 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 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.
- 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 trespasser for harm caused after the judgment.
- Paul’s neighbor walks on his property, because she believes that it is part of her land. She is a trespasser because her entry was intentional, though she was mistaken as to ownership.
- The police enter Paul’s property to break up a fight or to stop a crime from being committed. The entry is privileged.
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Chapter 2. Common Law Estates 43 results (showing 5 best matches)
- Unlike the Rule in Shelley’s Case, the Doctrine applies to personal property, as well as to real property.
- 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.
- 6. Real Property
- The Rule applies only to conveyances of real property.
- 5. The Doctrine Applies to Real and Personal Property
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Chapter 3. Concurrent Ownership 31 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.
- When physical partition will harm the property or cannot be done equally, a court will order that the property be sold and that the sale proceeds be divided among the former cotenants.
- 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.
- Ann, Bob, and Cathy were joint tenants. Cathy died, leaving a son, Jay, as her only heir. Jay takes nothing, because the right of survivorship prevails over the rules of descent. Ann and Bob acquired Cathy’s interest. Thus, the property becomes the joint tenancy property of Ann and Bob alone. They each hold an undivided one-half interest, rather than an undivided one-third
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Chapter 10. Priorities: The Recording System 83 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.
- 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).
- Owen conveyed his property to Ann, who did not record or take possession. Owen conveyed the same property to Bob. Bob did not have notice of the conveyance to Ann and recorded his deed. Bob then conveyed the property to Carol. Carol knew of Ann’s claim and did not record. Nevertheless, Carol prevails over Ann. Because Bob took without notice and recorded first, he divested Ann of her title under any recording act. He had legal title, which he transferred to Carol. Carol need not qualify for protection under any recording act because she took from a real, not an apparent, owner. This is called the bona fide purchaser filter or the bona fide purchaser shelter.
- 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.
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Chapter 7. Real Estate Brokers 11 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
- 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.
- In most cases, the seller retains the broker, which is the assumption in all the Illustrations in this Chapter. For rental properties, the landlord usually retains the broker. Even when the buyer or tenant retains the broker’s services, she still may receive her commission from the seller or landlord.
- 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.
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Chapter 6. Real Covenants and Equitable Servitudes 29 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
- 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.
- Ann covenanted with Bob that she would not sell liquor on her property. Ann sold her property to Cathy. If the requirements for a covenant to run with the land are met, Cathy may not sell liquor on the property though she neither made nor assumed the covenant. However, if the
- Ann covenanted to water a tree on Bob’s property. This benefit touches and concerns Bob’s property. Therefore, it runs to and is enforceable by future owners of Bob’s property, though the covenant’s burden does not affect any land owned by Ann.
- Ann covenanted with her neighbor, Bob, that she would use her property only for residential purposes. Ann then leased the property to Cathy, who was aware of the covenant. Bob may enforce the promise in equity against Cathy though she did not acquire Ann’s entire interest.
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OUTLINE 19 results (showing 5 best matches)
Chapter 12. Mortgages 25 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
- 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.
- Mortgages often provide that the rents and profits from the mortgaged property are assigned to the mortgagee but that the mortgagor can collect them for his own account for as long as he remains current on his debt (“assignment of rents clause”). Once a default occurs, the mortgagee can have a receiver appointed to collect the rents and to use them to pay senior liens, property expenses, and any deficiency judgment following the foreclosure.
- 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.
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Chapter 20. Land Use Regulation 43 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 major purpose for variances is to provide an administrative mechanism for avoiding the taking of property. If a variance is available for a hardship situation, a property owner may lose his ability to contend that the ordinance causes a taking of his property.
- When the government takes property, it must pay “just compensation” for it. A jury determines the amount after hearing evidence concerning the property’s fair market value. In certain cases, the government can take land immediately and pay the owner later after the fair market value has been determined.
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Chapter 5. Easements, Profits, and Licenses 75 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...
- Lil leased her property to Tom for ten years. The lease restricts Tom to residential uses of the property. Tom has a possessory interest in the property and not just an easement. While Tom’s possessory interest is limited in its use, Lil did not retain any possessory rights. Otherwise, she could run a business on the property so long as it did not interfere with Tom’s residential use. Because Tom has the exclusive right to possess, he may exclude all others, including Lil.
- 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.
- 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 9. Transfer of Title by Deed 46 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).
- 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.
- 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.
- Grace purported to convey property that she did not own to Gene by a general warranty deed. Gene later gave Rita a quitclaim deed to the same property. The true owner appeared and dispossessed Rita. Rita does not have a cause of action against Grace for breach of the covenants of seisin or right to convey, unless Gene assigns those causes of action to Rita and the statute of limitations has not expired. But Rita may sue Grace for breach of the covenants of warranty and quiet enjoyment after she is evicted. If Rita sells the property to Sam after she is evicted, he will have no cause of action against Grace, because even the future covenants do not run once they are breached. However, Rita may assign her cause of action to Sam.
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Chapter 4. Landlord and Tenant 37 results (showing 5 best matches)
- When the tenant assigns the lease, the assignee can enforce the landlord’s real covenants against her, and the landlord can enforce the real covenants against the assignee.
- Tom leased property for five years at $1,000 per month. Because neighborhood conditions have improved, the fair rental value of the property is now $1,200 per month. If the government takes the property, Tom should receive the lost bonus value of his lease, which is $200 for each month remaining in the lease term, reduced to the present value. Lil will receive the land’s fair market value, less the amount of Tom’s award. Lil’s fee simple title is worth less than it would be otherwise because Tom’s lease encumbers it. If her property would be worth $100,000 if it was not leased to Tom, the fact that Tom pays $200 per month below the current market rent means that any buyer of the property would require that the purchase price be reduced to cover that rent shortfall.
- “Rent” refers to the periodic charge the tenant must pay for his use of the landlord’s property. Usually, the lease specifies the amount of “rent reserved.” However, if the lease does not specify an amount, a rent equal to the fair rental value of the property is implied unless a gift was intended.
- The government has the power to acquire private property for public use. When leased property is taken, the government acquires the tenant’s, as well as the landlord’s, interest, which has the effect of terminating the lease.
- 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”
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Chapter 13. Airspace 3 results
- 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.
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Chapter 19. Nuisance 5 results
- 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.
- 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.
- 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.
- .... 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 the problem more cheaply than Nora and could order Nora to reimburse him for his avoidance costs. The court could also grant or deny the injunction without reallocating costs. If the problem cannot be eliminated through corrective measures, a court might consider the relative costs of either party’s relocating away from the other. Finally, a court might deny any relief for Owen...
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Chapter 15. Support 2 results
- 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.
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Chapter 11. Title Insurance 11 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 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.
- Before conveying the property to Barb, Sam gave a mortgage to Mort that was unrecorded. Although it is unrecorded, Barb will take subject to it if she either knew about it or did not pay value for the property. Because the title company has no practical method for discovering this mortgage and because Barb has no defense against it, the title company will not insure Barb against the mortgage. It is excluded from coverage.
- 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.
- The chain of title for a parcel of property was the State to Ruth, Ruth to Sam, and then Sam to Barb. All these deeds were recorded. However, Ruth never delivered the deed to Sam (or Ruth’s signature was forged or Ruth was incompetent to execute the deed). Therefore, Sam never acquired title to the property, and Barb did not either. If Barb’s policy insures that she has title, the title company must indemnify her for any loss, though the records did not reveal this problem. In this case, her title policy performs a true insurance function. However, not all policies provide such broad protection.
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Index 17 results (showing 5 best matches)
Chapter 16. Agreed Boundaries 5 results
- must be justified; the parties cannot be merely too lazy to locate the real line.
- 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.
- 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.
- 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.
- 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.
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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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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 14. Water 1 result
- 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
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- 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.